university of miami law review torts

University of Miami Law Review University of Miami Law Review

Volume 16 Number 4 Article 3

7-1-1962

Torts Torts

R. T. Bard

Carey A. Randall

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TORTS

R. T. BARD* AND CAREY A. RANDALL" *

INTRODUCTION

This Survey is written to help lawyers find cases in point. The emphasisis on facts rather than on theory. Where doubt arose as to whether a caseshould be included the decision has been in favor of inclusion, althoughthe subject might well include areas other than the law of torts. Thematerial covered is found in twenty-one volumes of the Southern Reporterand twenty-five volumes of the Federal Reporter.1 Even a specialist in tortlaw could experience difficulty in keeping abreast of this volume of cases.

The material covered is outlined as follows: 2

I. AUTOMOBILE CASES

A. The Dangerous Instrumentality DoctrineB. The Guest StatuteC. Care Required of Motorists

1. INTERSECTION ACCIDENTS

2. REAR-END COLLISIONS

3. PEDESTRIANS

4. LAST CLEAR CHANCE

5. OTHER NEGLIGENT OPERATION

6. CONTRIBUTORY NEGLIGENCE

II. STATUTORY LIABILITY

A. Statutes Affecting the Right to Maintain an ActionB. Jones and Federal Employers' Liability ActsC. Railroad OperationD. Federal Tort Claims Act

III. COMMON LAW NEGLIGENCE ACTIONS

A. Landlord and TenantB. Common CarriersC. Distribution of ElectricityD. Doctor - Patient

* Associate Editor of the University of Miami Law Review (Vol. XVII).** Editor-in-Chief of the University of Miami Law Review (Vol. XVII).

1. August 1959 through August 1961.2. The authors in the main have followed the outline and imitated the style of

538 UNIVERSITY OF MIAMI LAW REVIEW [VOL. XVI

E. Manufacturers and SuppliersF. Invitees, Licensees and TrespassersG. Care Owed Invitees

1. INJURIES NOT INVOLVING FALLS

2. SLIP, TRIP AND FALL

H. Master -ServantI. WarrantyJ. Defenses in Common Law Cases


2. ASSUMPTION OF RISK

3. IMMUNITY

K. Res Ipsa Loquitur

L. Damages

IV. OTHER COMMON LAW TORTS

A. Libel and SlanderB. Malicious Prosecution and False Arrest

V. LEGISLATION

I. AUTOMOBILE CASES

A. The Dangerous Instrumentality Doctrine

Florida's adaptation of the dangerous instrumentality doctrine to auto-mobile law imposes liability upon an automobile owner for injuries to thirdpersons resulting from the negligence of anyone operating the automobilewith the owner's authorization. Liability has been extended in the past toone who had possession and dominion and control over the vehicle;3 whilerecovery has been denied from a holder of the registered title who soldthe automobile before the accident. 4 During this survey period the majorityof cases under the doctrine have been concerned with who is an "owner."

In Cox Motor Co. v. Faber5 a purchaser executed a preliminary contract,made a down payment and took possession of a car from a dealer. A monthlater, after having paid one installment, the purchaser negligently injuredthe plaintiff. In an action against the dealer, the plaintiff relied upon a

Daniels, Torts, Fourth Survey of Fla. Law, 14 U. MIAMI L. REV. 602 (1960). In thepreparation of the article we have had the helpful comments of Mr. Sam Powers, Memberof the Florida Bar and Mr. Thomas A. Wills, Professor of Law, University of Miami.

3. Re-Mark Chem. Co. v. Ross, 101 So.2d 163 (Fla. App. 1958).4. McAfee v. Killingsworth, 98 So.2d 738 (Fla. 1957).5. 113 So.2d 771 (Fla. App. 1959). Followed in Hicks v. Land, 117 So.2d 11

(Fla. App.), cert. denied, 120 So.2d 617 (Fla. 1960).

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clause in the contract to purchase which stated that the purchaser acquiredno right, title or interest in the property until the property was deliveredto him and either the full purchase price was paid or a satisfactory deferredpayment agreement was executed. The trial court found that ownershipremained in the dealer in the absence of any showing that the purchaseprice had been paid or a deferred payment plan executed. The appellatecourt reversed, holding that the effect of the clause was only to reservelegal title in the dealer. Beneficial interest lay in the purchaser, who wasthe owner in respect to tort liability.

A purchaser in another case6 signed a "Used Car Order," under theterms of which he was permitted to cancel the order at his option. Hetested the car for one day and returned it as unsuitable. The dealer'ssalesman persuaded him to test the car for two more days, in which period thepurchaser collided with the plaintiff. A judgment against the dealer wasaffirmed, the issue of ownership under the circumstances having beenproperly submitted to the jury.

A summary judgment for the defendant was held to have been errorwhen the evidence showed that the defendant had orally agreed to sella car to a friend, and that the friend had used the car for six months withoutpayment and returned it to the defendant shortly after an accident withthe plaintiff. The question of beneficial ownership was for the jury.7

The opinion in Martin v. Lloyd Motor Co.8 thoroughly reviews Floridalaw in regard to bailees and lessees of motor vehicles. An owner deliveredhis automobile to a dealer to sell for him with an agreement that prospectivepurchasers could test-drive the car. An interested customer negligentlykilled the plaintiff's decedent. The complaint against the bailee-dealer wasdismissed on the ground that there was no allegation that the bailment wasmade for mutual benefit or profit, that the alleged negligence of the baileewas gross or that he acted in bad faith. In reversing on appeal, the courtapplied the standard of "possession and dominion and control" to holdthat the dangerous instrumentality doctrine is applicable to a bailee whopermits a third person to drive the automobile, whether the bailment isgratuitous, for hire or for mutual benefit. The bailee's liability is notdependent upon a showing of bad faith or gross negligence.

When an owner of a car becomes liable under the doctrine for thenegligence of an employee of one to whom the owner has bailed the car,the owner is entitled to indemnity from the bailee-employer.9 A husband,who was the manager of a corporation, drove his wife's car to work and

6. Fricker v. Lester, 114 So.2d 694 (Fla. App. 1959).7. Register v. Redding, 126 So.2d 289 (Fla. App. 1961).8. 119 So.2d 413 (Fla. App. 1960).9. Hutchins v. Frank E. Campbell, Inc., 123 So.2d 273 (Fla. App. 1960).

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540 UNIVERSITY OF MIAMI LAW REVIEW

loaned it to an employee, who injured the plaintiff. The cross-claim of thedefendant wife was upheld against the defendant corporation.

The question of authorization by the owner was disputed in Blanfordv. Nourse.10 A highway patrolman arrived at the scene of a minor accident,decided the defendant was intoxicated, and took the driver's seat of thedefendant's car to drive him to a patrol station. The plaintiff was injuredwhile the patrolman was at the wheel. No liability attached to the defend-ant-owner under the doctrine, since there was an absence of consent. Theevidence showed that the owner believed he bad no alternative but topermit the patrolman to drive.

Hale v. Adams" raised points of first impression under both the dan-gerous instrumentality doctrine and the guest statute.12 The owner wasriding in his car, which was being driven by his daughter. After. a negligentcollision, the owner's complaint in a suit for personal injury brought againsthis daughter was dismissed on the ground that the negligence of the operatorwas imputed to the owner. The case was reversed on appeal and the ruleannounced that the dangerous instrumentality doctrine has no applicationin an action by the owner against the negligent operator. The doctrinefinds its basis in respondeat superior with a principal-agent relationshipexisting between the owner and the operator. Negligence of an agent cannotbe imputed to a principal in an action by the principal against the agent.

Shattuck v. Mullen,13 involving a collision between two aircraft, appearsto have extended the doctrine to impose liability upon the owner of a privateairplane for the negligence of the operator. Suit was brought by one pilotagainst the pilot of the second plane and its owner. Although the singleissue raised on appeal by both defendants was the applicability of a jurycharge on last clear chance, 14 the court considered an airplane to be asmuch a dangerous instrumentality as an automobile for the purpose ofapplying the doctrine of. last clear chance.

B. The Guest Statute

The majority of cases involving Florida's guest statute15 have turnedon the question of whether the defendant's conduct has constituted grossnegligence. The guidelines furnished by the supreme court in Carraway v.Revell'0 successfully eliminated much previous uncertainty in defining thedegree of negligence required under the statute. Consequently, recent deci-

10. 120 So.2d 830 (Fla. App. 1960).11. 117 So.2d 524 (Fla.App. 1960).12. FLA. STAT. § 320.59 (1961). See text accompanying note 29 infra.13. 115 So.2d 597 (Fla. App. 1959), cert. denied, 119 So.2d 791 (Fla. 1960), 15

U. MIAMi L. REV. 214 (1960).14. See text accompanying note 77 infra.15. FLA. STAT. § 320.59 (1961).16. 116 So.2d 16 (Fla. 1959).

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sions have been concerned primarily with the sufficiency of the plaintiff'sevidence to meet the Carraway standards of gross negligence. 17 On retrialof the Carraway case, a finding of gross negligence was warranted by evidenceshowing that an automobile driver knew a tire was worn smooth andpresented more than just a possibility of blow out.18

In Farrey v. Bettendorf,19 when a minor driver of a motor scooter failedto keep a lookout ahead and his passenger was injured, a jury question wasraised as to whether the .conduct amounted to a conscious indifference toconsequences of a mere momentary lapse.

In six cases recovery was denied when the plaintiff either failed to raisea, question of material fact as to gross negligence, 20 or failed to state acause of action. 21 Three of these cases involved cars running off the road.In White v. Godwin22 the defendant swerved off the highway to avoidan oncoming car in the'same lane, and turned over in attempting to re-enterthe highway. The proximate cause of the injury was held to be the defend-ant's act of attempting to maneuver back on the road, and there was noevidence that this course of conduct would have caused a reasonable andprudent man to know that it would most likely result in injury to theplaintiff.. Similarly, there was no gross negligence when lack of familiaritywith a new power steering system caused the defendant in Godwin v.Ringley2

3 to veer into the path of a truck while trying to get back on theroad; A count in gross negligence was held properly dismissed in Wilsonv. Eagle,24 in which the car overturned after striking a soft shoulder.Although the count contained allegations that the car was traveling sixty tosixty-five miles per hour on a wet highway, that defendant had previouslyrun off the road and that the plaintiff had warned the defendant, the courtfound the complaint deficient in failing to allege where the defendant had

17. Gross negligence: that degree of negligence which lies in the area between ordinarynegligence and wilful and wanton misconduct; that course of conduct which a reasonableand prudent man would know would probably and most likely result in injury to personsor property; that course of conduct such that the likelihood of injury to other persons orproperty is known by the actor to be imminent or clear and present. Carraway v. Revell,116 So.2d 16, 22, 23 (Fla. 1959).

18. Revell v. Carraway, 124 So.2d 874 (Fla. App. 1960).19. 123 So.2d 558 (Fla. App. 1960). The evidence was held sufficient to go to

the jury in Reynolds v. Aument, 133 So.2d 562 (Fla. App.), cert. denied, 135 So.2d 743(Fla. 1961) (excessive speed coupled with other facts); Douglass v. Calvin, 130 So.2d 282(Fla. App. 1961) (excessive speed coupled with other facts); Mahoney v. La Russo, 120So.2d 660 (Fla. App. 1960) (no facts stated).

20. Watts v. Smith, 133 So.2d 569 (Fla., App. 1961) (no facts stated); Godwinv. Ringley, 126 So.2d 163 (Fla. App. 1961); White v. Godwin, 124 So.2d 525 (Fla. App.1960); Messina v. Zuber, 116 So.2d 780 (Fla. App. 1960) (no facts stated); Dye v.Freeman, 116 So.2d 647 (Fla. App. 1959) (brakes applied as soon as driver realized carahead was stopped).

21. Wilson v. Eagle, 120 So.2d 207 (Fla. App. 1960).22. .124 So.2d 525 (Fla. App. 1960).23. 126 So.2d 163 (Fla. App. 1961).24. 120 So.2d 207 (Fla. App. 1960).

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previously run off the highway and in failing to indicate that the defendantwas aware of the danger of the soft shoulder.

The question of contributory negligence under the statute was presentedin one Fifth Circuit case.25 After a judgment for the plaintiff, a newtrial was granted on the basis of evidence tending to show that the partieshad been drinking together. The court held that it was error to haveremoved the defense of contributory negligence from the jury's considera-tion since, under Florida law, a recovery may not be had under the gueststatute by a passenger who voluntarily rides with one who is not a safedriver by reason of having imbibed too much.

The guest statute has been held not to apply to a passenger who istransported solely for the benefit of the owner or operator, or for themutual benefit of the passenger and the owner or operator.26 In determiningthe question of mutual benefit when one businessman drove another to arestaurant during an intermission in a conference, the court held that thepassenger was a guest within the statute.2 7 Neither the fact that businesswas resumed after dinner nor the fact that "shop talk" took place duringdinner changed the social nature of the trip. However, mutual benefitexisted when the operator of a car transported the plaintiff to obtain a loanin connection with a business matter in which both parties had an interest.2 8

The Hale v. Adams 29 litigation reappeared in the appellate court afterthe owner-passenger failed to establish a prima facie showing of gross negli-gence and was denied permission to amend his allegation to ordinarynegligence. The majority of the court, in reversing, considered their earlieropinion to have held collaterally that the owner-passenger could recoverunder proof of ordinary negligence. In a special concurrence 30 Chief JudgeCarroll was unable to reach this conclusion, which he believed would opposethe principle of the guest statute by permitting an owner, who happenedto be a passenger, to recover against a driver for simple negligence, whileother passengers in the same car would be required to prove gross negligenceor wilful and wanton misconduct. He reasoned that the question of grossnegligence should have gone to the jury under instructions concerning theplaintiff's status as a guest or passenger under the statute.

25. Mascarenas v. Johnson, 280 F.2d 49 (5th Cir. 1960).26. Sullivan v. Stock, 98 So.2d 507 (Fla. App. 1957).27. Berne v. Peterson, 113 So.2d 718 (Fla. App. 1959), cert. denied, 117 So.2d

843 (Fla. 1960).28. Tillman v. McLeod, 124 So.2d 135 (Fla. App. 1960).29. 138 So.2d 761 (Fla. App. 1962) (action by owner-passenger against his daughter.

driver). For earlier history see Hale v. Adams, 117 So.2d 524 (Fla. App. 1960) and textaccompanying note 11 supra.

30. 138 So.2d at 763.

[VOL. XVI

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C. Care Required of Motorists

1. INTERSECTION ACCIDENTS

More often than not in an intersection collision, some lack of duecare can be attributed to both parties. Contributory negligence by theplaintiff was responsible for a top-heavy number of trial court judgmentsfavoring the defendant (fifteen out of seventeen). Eleven defendant judg-ments were affirmed. 3l Grounds for the four reversals were failure to allowquestions to go to the jury,32 error in applying the principles of law applic-able to contributory negligence 33 and omitting to charge on the duty of adriver to obey a stop sign.34

The plaintiff in Riles v. Hege35 was proceeding at thirty miles per houron a main thoroughfare and struck the defendant crossing from the righton an unmarked side street. The defendant, who was moving at five toten miles per hour, testified that a late afternoon sun was directly in hiseyes. The affirmance of a directed verdict for the defendant produced astrong dissent based upon the contention that the evidence tending to over-weigh the prima facie case (created by failure to yield to a vehicle on theright) should have been considered by the jury.3 6

The doctrine of sudden emergency was reviewed thoroughly in Hormo-vitis v. Mut. Lumber Co. 37 When the brakes of plaintiff's truck failed

31. Riles v. Hege, 133 So.2d 84 (Fla. App. 1961), cert. denied, 138 So.2d 334(Fla. 1962) (directed verdict based on contributory negligence); Sahlsten v. Leach, 133So.2d 83 (Fla. App. 1961) (jury verdict on question of which car entered unmarkedintersection first); Garrison v. Hertz Corp., 129 So.2d 452 (Fla. App. 1961) (jury verdictwhen defendant stopped, then proceeded and was hit by plaintiff); Raven v. Coates, 125So.2d 770 (Fla. App.), cert. denied, 138 So.2d 339 (Fla. 1961) (complaint against cityfor failure to maintain stop sign dismissed); Hormovitis v. Mut. Lumber Co., 120 So.2d42 (Fla. App.), cert. denied, 123 So.2d 676 (Fla. 1960) (summary judgment whenplaintiff's truck ran through stop street as brakes.failed); Lunsford v. Laite, 116 So.2d 797

Fla. App. 1959), cert. denied, 120 So.2d 616 (Fla. 1960) (jury verdict, no facts stated);osens v. Weaver, 115 So.2d 455 (Fla. App. 1959) (jury verdict when cars approached

at right angles and defendant turned in same direction that plaintiff was proceeding);Driscoll v. Morris, 114 So.2d 314 (Fla. App. 1959) (jury verdict on conflicting testimonyas to whether defendant stopped at controlled intersection); Kramer v. Landau, 113 So.2d756 (Fla. App. 1959) (summary judgment on evidence that plaintiff's driver ran stopsign); McWhorter v. Curby, 113 So.2d 566 (Fla. App. 1959) (no cause of action inallegation that railroad was negligent in obstructing drivers' view with standing freight car);Kniskern v. Railway Express Agency, Inc., 113 So.2d 563 (Fla. App. 1959) (directedverdict when plaintiff proceeded through green light despite defendant's truck blockingintersection).

32. Verducci v. Plasse, 121 So.2d 37 (Fla. App. 1960) (trial court considered plain-tiff's testimony incredible); Mele v. Summers, 113 So.2d 254 (Fla. App. 1959) (plaintiffthought he had time to cross ahead of defendant).

33. Barr v. Mizrahi, 124 So.2d 508 (Fla. App. 1960) (plaintiff not contributorilynegligent as matter of law when he looked but failed to see defendant).

34. Allen v. Rucks, 121 So.2d 167 (Fla. App.), cert. denied, 125 So.2d 877 (Fla.1960) (trial judge failed to instruct jury regarding duty of defendant to obey a stop sign).

35. 133 So.2d 84 (Fla. App. 1961), cert. denied, 138 So.2d 334 (Fla. 1962).36. Id. at 87.37. 120 So.2d 42 (Fla. App.), cert. denied, 123 So.2d 676 (Fla. 1960).

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at a stop street and the driver ran up on the center island of the crossinghighway, the defendant was held to have acted reasonably in an emergency,even though he swerved into the plaintiff's truck in an effort to avoid it.

The City of Hialeah was joined as a defendant in Raven v. Coates3on a theory of negligence in failing to replace a stop sign.. In affirminga dismissal of the complaint, 9 the court doubted that any casual relationcould be shown between the damages and the absence of the sign, evenif the city were otherwise liable, since a person using a street is under aduty to exercise his faculties to discover and avoid dangers.

Of the two affirmed plaintiffs' judgments, Kuhn v. Telford40 illustratesthe nice distinctions which must be drawn frequently in collision cases.Testimony indicated that the plaintiff was traveling between twenty andthirty-five miles per hour in a twenty-five mile per hour zone, and conflictedas to whether or not the defendant. stopped at the crossing stop street. Onappeal from a second trial, a directed verdict for the plaintiff was reversedunanimously on the ground of contributory negligence. The trial court wasaffirmed on rehearing4' with the rationale that, from the fact that theplaintiff was struck in the side and toward the rear, any slight speeding bythe plaintiff could not have proximately contributed to the accident.

2. REAR-END COLLISIONS

Appellate reversals in six out of eight rear-end collision cases indicatethat a particularly fine line often exists between evidence requiring a directedverdict for the litigant associated with the leading car and evidence entitlinghis adversary to reach the jury.

The commonplace rear-end collision involves the plaintiff stopped ata traffic signal as the defendant strikes the rear of the plaintiff's car. Theobligation imposed upon a motor vehicle operator to maintain control of hisvehicle at all times, commensurate with the circumstances, has resulted inthe rule re-enunciated in Bellere v. Madsen:42

[W]here a defendant runs into the rear of plaintiff's car whileplaintiff is stopped for a traffic light or at an intersection, thereis a presumption of negligence of the defendant on which theplaintiff would be entitled to recover in the absence of an expla-nation by the defendant.

The Belleredefendant had been moving in a chain of cars approachinga red light and testified that his attention was diverted temporarily by

38. 125 So.2d 770 (Fla. App.), cert. denied, 138 So.2d 339 (Fla. 1961).39. See text accompanying note 231 infra.40. 115 So.2d 36 (Fla. App. 1959), cert. denied, 117.So.2d 843 (Fla. 1960).41. Id. at 39.42. 114 So.2d 619, 621 (Fla. 1959).

[VOL. XVl

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concern for the proximity of a pedestrian on the roadside. A judgmentfor the defendant was reversed when the court held that he was notentitled to a charge on the theory of "sudden emergency" under circum-stances in which his own negligence contributed to the creation of theemergency.

Two other typical cases also resulted in- reversals. The driver's explana-tion in Pensacola Transit Co. v. Denton43 'that his brakes failed was heldsufficient to raise a question for the jury as. to whether he had overcome thepresumption of negligence against him. But testimony.in Kimenker v.Greater Miami Car Rental, Inc.44 that the driver had to swerve to avoida bus pulling out from the curb did not overcome the presumption, and theplaintiff was entitled to a directed verdict.

Jury questions were presented under three factual situations in whichthe leading vehicles were stopped for reasons other than a traffic signal.judgments on verdicts were affirmed in two of these cases, one in favorof the plaintiff,4" the other in favor of the defendant. 46 In the third casea summary judgment for the defendant was reversed when conflicting testi-mony raised questions which should have been determined by a jury. 47

The plaintiff in Cook v. Mason4 s was partially blinded by the headlightsof an approaching car. The defendant relied upon the range of vision rule,49

which imposes a duty upon a driver blinded by oncoming lights to usereasonable care, even to the extent of stopping, to avoid injury to anyonewho might be ahead of him. The rule was held not to establish negligenceas a matter of law in the event of accident, but merely to set forth the dutyof the driver to be considered under the circumstances by the jury.

Summary judgments for defendants suffered reversals in the two litiga-tions evolving from rear-end collisions when both vehicles were in motion.The plaintiff motorcycle driver's evidence raised a question of fact inRianhard v. Rice;50 and the existence of a sudden emergency in Gertler v.Peterson,51 rebutting the presumption of negligence against a followingdriver, was a matter for jury determination.

43. 119 So.2d 296, (Fla. App. 1960).44. 115 So.2d 191 (Fla. App. 1959), cert. denied, 119 So.2d 293 (Fla. 1960).45. Cook v. Mason, 133 So.2d 428 (Fla. App. 1961), cert. denied, 138 So.2d 332

(Fla. 1962) (although trailer was off the highway, rear wheels extended three feet intoroad and were struck by plaintiff). .

46. Staicer v. Hall, 130 So.2d 113 (Fla. App. 1961) (plaintiff started in response totraffic officer's signal, then stopped when light turned red).

47. Dubov v. Ropes, 124 So.2d 34 (Fla. App. 1960) (defendant stopped stationwagon in highway to retrieve twelve-foot pole which had fallen out).

48. 133 So.2d 428 (Fla. App. 1961).49. Mathers v. Botsford, 86 Fla. 40, 42, 97 So. 282 (1923).50. 119 So.2d 730 (Fla. App.), cert. denied, 123 So.2d 676 (Fla. 1960) (motorcycle

struck by passing truck).51. 116 S0.2d 778 (Fla. App. 1960) (defendant shifted lanes, crossing ahead of

plaintiff).

1962]


3. PEDESTRIANS

Notwithstanding the high degree of care which must be exercised bya motorist in any area where children may be anticipated, a child has areciprocal duty, commensurate with his age, intelligence and experience,to look for traffic before entering a roadway. When a child rushes intothe side of a passing vehicle, the evidence usually warrants a decision forthe defendant without the need for a determination of facts by the jury.In two cases of this nature, a directed verdict 5 2 and a summary judgment 8

were both affirmed.

Even when the child enters the path of the vehicle, contributory negli-gence may be found as a matter of law. In Riedel v. Driscoll54 a girl offourteen, after leaving a bus, stepped in front of an approaching automobileon a heavily traveled street. The driver was exceeding the twenty-fivemile per hour speed limit by five to eight miles per hour, and her brakeswere partially defective. A judgment on a jury verdict for the plaintiffwas reversed for a new trial, 5 the court finding that contributory negligencehad been established by the overwhelming weight of the evidence.

However, in a case"8 involving a child struck in a marked cross walk,a judgment on a verdict for the defendant was reversed for error in aninstruction which, in effect, made the plaintiff guilty of contributory negli-gence if she failed to determine that her path was safe before entering thestreet. Although a county ordinance which provided a right of way to apedestrian in a cross walk did not confer an absolute right of way, itcombined with plaintiff's testimony to furnish evidence from which thejury could have drawn conclusions of fact sufficient to have established theplaintiff's case.

One pedestrian case57 centered around the thirty mile per hour speedlimit58 in a residence district.59 A thirteen year old boy was struck nearthe entrance of a trailer park by a car traveling forty-five to fifty milesper hour. The trailer park contained two houses and twenty-one occupied

52. Jackson v. Haney, 124 So.2d 719 (Fla. App. 1960).53. Griffis v. Du Bow, 114 So.2d 207 (Fla. App. 1959). Followed in Bailey v.

Keene, 122 So.2d 498 (Fla. App. 1960), in which a defendant's summary judgment wasaffirmed, although the facts do not indicate the manner of contact between the plaintiffand the automobile.

54. 124 So.2d 42 (Fla. App. 1960).55. On retrial defendant's motion for summary judgment was denied. Petition for

certiorari was dismissed in Riedel v. Driscoll, 127 So.2d 924 (Fla. App. 1961).56. Zadan v. Cohen, 127 So.2d 466 (Fla. App.), cert. denied, 133 So.2d 322

(Fla. 1961).57. Vissers v. Jordan, 131 So.2d 754 (Fla. App. 1961).58. FLA. STAT. § 317.22 (1961).59. FLA. STAT. § 317.01(19) (1961): "RESIDENCE DISTRICT. The territory

contiguous to, and including, a highway not comprising a business district when theproperty on such highway, for a distance of three hundred feet or more, is in the mainimproved with residence or residences and buildings in use for business."

[VOL. XVI

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trailers, and covered a road frontage of 330 feet. The trial court refusedto permit the jury to determine whether the area was a residence districtwithin the statute. In reversing a judgment for the defendant, the appellatecourt noted the rule announced in Gordon v. Cozart ° that if the evidenceis conflicting as to the number and extent of the residences the questionis for the jury, and proceeded to hold: "When, as here, the number andlocation of the residences is not ir dispute but reasonable men may differas to whether the inferences warrant the conclusion that the district is 'inthe main' residential, the question is also for the jury."' '

Nash Miami Motors, Inc. v. Ellsworth6' brought into issue the conceptof privileged information in an accident report.63 The defendant gaveinformation to a special police investigator subsequent to having giveninformation to another officer at the time of the accident for the purposeof preparing an accident report. The trial court permitted the informationgiven to the second investigator to be introduced into evidence. Judgmentfor the plaintiff was reversed with the holding that the subsequent informationwas privileged equally with the statements provided for the official accidentreport. For a statement to be privileged as an accident report, it is notnecessary that it be given to the investigating officer, be given at the sceneof accident, or be used in a subsequently filed report of the accident. 64

With the exception of Manganelli v. Covington5 and Blanford v.Nourse,66 the remaining pedestrian cases involved the doctrine of last clearchance, and are discussed in the succeeding subsection.

4. LAST CLEAR CHANCE

Possibly no facet of automobile law lends itself to more uncertaintythan the doctrine of last clear chance. As stated by Mr. Justice Thomal inthe James v. Keene67 opinion, "the rule itself is not so complicated as is thevariety of factual situations which have produced the necessity for consideringthe applicability of the rule to particular cases."

60. 110 So.2d 75 (Fla. App.), cert. denied, 114 So.2d 6 (Fla. 1959).61. 131 So.2d at 755.62. 129 So.2d 704 (Fla. App. 1961).63. FLA. STAT. § 317.17 (1961).64. Based upon FLA. STAT. § 317.13(2) (1961): "The department may require

any driver of a vehicle involved in an accident, of which report must be made as providedin this section, to' file supplemental reports, whenever the original report is insufficient inthe opinion of the department, and may require witnesses of accidents to render reports tothe department."

65. 114"So.2d 320 (Fla. App. 1959). An involuntary nonsuit was affirmed. Theevidence could not support a finding of negligence when the plaintiff was struck first byanother car and thrown into the path of the defendant's vehicle.

66. 120 So.2d 830 (Fla. App. 1960). An involuntary nonsuit was affirmed. Nonegligence was shown when the defendant driver was not aware of a mechanical defectwhich caused a car to move in reverse when the gear shift was placed in the forward driveposition. See text accompanying note 10 supra.

67. 133 So.2d 297, 299 (Fla. 1961), quashing 121 So.2d 186 (Fla. App. 1960).

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.From the same opinion the elements which, under Florida law, mustbe present to invoke the doctrine are: (1) that the injured party has alreadycome into a position of peril; (2) that the injuring party then or thereafterbecomes, or in the exercise of ordinary prudence ought to have become,aware not only of that fact, but also that the party in peril either reasonablycannot escape from it, or apparently will not' avail himself of opportunitiesopen to him for doing so; (3) that the injuring party subsequently has theopportunity by the exercise of reasonable care to save the other from harm;and (4) that he fails to exercise such care.

The purpose of the doctrine is to protect a plaintiff from an unjustapplication of the rule of contributory negligence. A corollary has prevailedin some opinions to the effect that the doctrine is not applicable if theplaintiff's negligence continues up to the time of the injury.6 8 Strict adher-ence to this concept would appear to bar recovery by any imperiled plaintiffwho remains inattentive to his own safety, a result not borne out by the cases.

A pedestrian in the James case was struck while crossing a four-laneboulevard at 8:00 p.m. She did not see the defendant's car prior to theimpact. Although visibility -was good and the defendant was driving wellwithin the speed limit, she failed to observe the plaintiff until it was toolate to avoid striking her. A witness, who had been driving parallel to thedefendant in the adjacent lane, testified that the plaintiff had been visiblefor several hundred feet. He had remarked to his wife that there was a ladywho was going to get hit. The district court of appeal held that a chargeon last clear chance had been properly denied. The plaintiff's own con-tributory negligence had continued until the time of the injurious act; and,when both plaintiff and defendant were inattentive, neither had the last clearchance to avoid the accident: In quashing this decision the supreme courtheld only that the factual situation presented a question for the jury pursuantto an appropriate instruction by the trial judge. The tenor of the opiniondisapproved of the lower court's conclusion that an impasse had been reachedthrough the mutual inattentiveness of the parties, precluding an instructionon last clear chance. In view of the lower court's finding that the plaintiffhad been visible for several hundred feet, facts sufficient to satisfy each ofthe elements of the doctrine could reasonably have been determined.

68. E.g., Falnes v. Kaplan, 101 So.2d 377, 380 (Fla. 1958): "Falnes had not beenput in any position of danger from which he could not extricate himself and his negligencehad not ceased. To terminate his own negligence he had but to step aside when hebecame aware of the approaching vehicle ...... Edwards v. Donaldson, 103 So.2d 256,259 (Fla. App. 1958): "In applying the doctrine of last clear chance to a set of facts wemuch concern ourselves initially with the premise that in order to invoke such a doctrine itis necessary that there must be competent substantial evidence clearly indicating that theprior negligence-of the plaintiff in placing himself in a perilous position had terminated orculminated and from which the exercise of ordinary care on his part would not thereafterextricate him."

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. Douglas v. Hackney,6 decided the same day as James, went the otherway. A pedestrian was struck and killed in the act of crossing a busy thor-oughfare at night.' The defendant testified that he did not see the deceasedprior to impact. There were no witnesses and no evidence of negligence onthe part of the defendant.' The supreme court found no basis for a charge

.on last clear chance when there was no factual support for a jury inferencethat the driver saw, or reasonably should have seen, the deceased in sufficienttime to avoid striking him.

Trial courts erred in three remaining cases involving pedestrians byexcluding expert'testimony as to the time required for the plaintiff to crossthe defendant's range of vision when the question before the jury waswhether the defendant had a reasonable opportunity to avoid striking theplaintiff;70 by denying an instruction on the doctrine when' the defendanthad seen the plaintiff at a distance of sixty to seventy feet before impact;71

and by failing to submit the case to the jury under a charge of last clear.chance when the defendant's car created skid marks for seventy feet.72

The applicability of the doctrine was' brought 'into question, in an auto-mobile-bus collision 73 and in litigation resulting from a driver's swervingoff the road to avoid a car turning in his immediate path.74 In Holdsworthv. Crews75 the plaintiff and defendant were approaching each other fromopposite directions on a two-lane road. The plaintiff's speed Was seventy-fiveto eighty-five miles per hour; the defendant was moving slowly in preparationfor a left turn. The defendant testified that he saw the plaintiff's car anddid not think that he had time to turn in front, of it. Nevertheless, hecommenced his turn, crossing partially into the plaintiff's lane. The plaintiff,swerving off the road to avoid the defendant, struck a tree. The trial courtgranted the plaintiff's motion for a new trial on the ground of failure toinstruct the jury on last clear chance. On appeal, the decision was affirmed.

With the exception of one California case,76. Shattuck v. Mullen77

appears to be 'the only instance of the application of the last clear chancedoctrine to aircraft. *Two light planes collided just above the ground. Theplaintiff was descending to land on a runway crossing the one from which thedefendant was taking.off. Neither party saw the other until the instant

69. 133 So.2d 301 (Fla. 1961), discharging cert. in 121 So.2d 804 (Fla. App. 1960).70. Mathews 'v. Carlson, 130 So.2d 625 (Fla. App. 1961).

.71. Hodell v. Snyder, 122 So.2d 36 (Fla. App. 1960).72. Huff v. Belcastro, 127 So.2d 476 (Fla. App. 1961).73. King v. Jacksonville Coach Co., 122 So.2d 480 (Fla. App. 1960) (charge prop-

erly given; no facts of the collision stated).74. Holdsworth v. Crews, 129 So.2d 153 (Fla. App.), cert. denied, 135 So.2d 743

(Fla. 1961).75. Ibid.76. Ebrite v. Crawford, 5 P.2d 686 (Cal. App. 1931), aff'd, 215 Cal. 724, 12

P.2d 937 (1932).77. 115 So.2d 597 (Fla. App. 1959), cert. denied, 119 So.2d 791 (Fla. 1960).

19621


before the collision. Judgment on a jury verdict for the plaintiff was reversedfor error in charging on last clear chance when the evidence showed that theplaintiff and the defendant had equal opportunities to discover each other,and the defendant took evasive action as soon, as she saw the other plane.However, the doctrine was found to be applicable to aircraft, in a propercase, in the same manner in which it has been applied to automobileoperation.

5. OTHER NEGLICENT OPERATION

Among a small number of miscellaneous type accidents giving rise toappellate opinions, there were three head-on collisions. While no significanttort law was developed, summary judgments in favor of the defendantswere reversed in all three cases, each turning on an interesting question ofadmissible evidence.

In Day v. Stickle78 the plaintiff attempted to testify concerning hisobservations of the movements of the other car as it had approached onthe highway. The evidence was rejected by the trial court on the groundthat because the other driver had been killed, the proffered testimony wasbarred under the dead man's statute.79 This ruling proved to be reversibleerror. The plaintiff's observations of the other car did not constitute a"transaction" between the plaintiff and the deceased operator within themeaning of the statute.

Reversed also was a directed verdict for a defendant in a traffic lane whostruck the rear of the plaintiff's car after it had backed partially from a diag-onal parking space.80 The evidence was sufficient to require that it besubmitted to a jury. A reversal on certiorari in favor of the plaintiff, in acase growing out of a collision between an overtaken truck and an overtakingtruck, was concerned solely with error in refusing evidence.,'

An exceptional action was maintained in Halavin v. Tamiami TrailTours, Inc.82 The plaintiff lost control of a car and house trailer, whichturned over, as the alleged result of suction created by the negligent operationof defendant's tractor-trailer while passing the plaintiff's vehicle at high speed.There was no physical contact. Admitting an extremely close question, thecourt reversed a summary judgment for the defendant, holding that the

78. 113 So.2d 559 (Fla. App.), cert. denied, 115 So.2d 414 (Fla. 1959). The twoother head-on collision cases were Sconyer v. Scheper, 119 So.2d 408 (Fla. App.), cert.denied, 120 So.2d 618 (Fla. 1960) (experts differed on competency of minor witnessseverely injured by collision) and Tarkoff v. Schmunk, 117 So.2d 442 (Fla. App. 1959)(physician's testimony that deceased driver suffered stroke prior to collision was opiniononly)79. FLA. STAT. § 90.05 (1961).

80. Belden v. Lynch, 126 So.2d 578 (Fla. App. 1961).81. Hendrick v. Strazzulla, 135 So.2d 1 (Fla. 1961), quashing 125 So.2d 589 (Fla.

App. 1960).82. 124 So.2d 746 (Fla. App. 1960).

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evidence was of sufficient competence and substance to justify a lawfulinference by a jury that the negligence of the defendant proximately causedthe plaintiff's injuries.

The owner parked his automobile on a city street and left the ignitionunlocked in violation of city and county ordinances. A third party took thecar without authority and negligently injured the plaintiff. A dismissal ofthe complaint against the owner was affirmed88 on the ground that thedefendant's negligence was not the proximate cause of the injury. In follow-ing the majority view in this case of first impression in Florida, the courtnoted that a wilful, malicious or criminal act, as a general rule, breaks thechain of causation.

A fortiori, a plaintiff whose husband was killed by a car thief sufferedan adverse judgment on the pleadings in an action against the car ownerwhen no statute or ordinance prohibited leaving ignition keys in an auto-mobile.8 4


Contributory negligence, as a major issue in most automobile cases, hasnecessarily been mentioned in previous subsections. The following discussionis confined primarily to those cases which have not been identified earlier.

Two cars, each proceeding at approximately fifteen miles per hour, col-lided at an intersection. The plaintiff testified that he looked to left andright but did not see the defendant, who came out of a cross street. A juryverdict for the plaintiff was set aside by the trial court, and judgment enteredfor the defendant, the plaintiff being held guilty of contributory negligenceas a matter of law. The appellate court reversed85 for misapplication of therule of contributory negligence, quoting from Nelson v. Ziegler:86

The correct rule applicable to the defense of contributory neg-ligence is that only in those cases where negligence of a plaintiffproximately contributes to the cause of his own injury and damagewill such negligence bar recovery. A plaintiff can be guilty ofsome negligence but unless it is negligence that proximately contrib-uted to causing the injury, then the negligence of the defendant, ifestablished, remains the proximate cause and despite the fact thatthe plaintiff is guilty of some negligence, the defendant can stillbe held liable.

A similar result obtained in Alessi v. Farkas,87 when the plaintiff was

83. Lingefelt v. Hanner,.125 So.2d 325 (Fla. App. 1960), 15 U. MIAMI L. REv.440 (1961).

84. Bryant v. Atlantic Car Rental, Inc., 127 So.2d 910 (Fla. App. 1961).85. Barr v. Mizrahi, 124 So.2d 508 (Fla. App. 1960).86. 89 So.2d 780, 782 (Fla. 1956).87. 118 So.2d 658 (Fla. App. 1960). But see, Owen v. Marvin Indus., Inc., 118

So.2d 673 (Fla. App.), cert. denied, 123 So.2d 674 (Fla. 1960) (defendant's summaryjudgment affirmed; plaintiff held guilty of contributory negligence as matter of law).

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552 UNIVERSITY OF MIAMI'LAW REVIEW

driving through a residential district and was struck by the defendant backingout of a private drive. The court pointed out that contributory' negligenceis normally a jury question. When the jury had the opportunity to weighthe evidence,.,it was error to set aside the verdict and find the plaintiff guilty

*of contributory negligence as a matter of law.

An automobile passenger was injured and brought action against thedriver of the second car."" The court reversed a directed verdict for thedefendant and reiterated the rule that it is not necessary that the driverof the car in which the passenger is riding be found free from negligence.If negligence of the two drivers combines to produce 'and proximatelycause the result, the passenger can recover from the driver and ownerof the second car.

An exception to this rule was illustrated in Smart v. Masker.89 Theinjured passenger again brought action against the driver of the second car.Although both drivers were negligent, the driver of the plaintiff's car hadbeen drinking and had driven on the wrong side of the road prior to theaccident. These facts were known by the plaintiff. . Judgment for theplaintiff was reversed. The trial court. was held to have erred in. strikingthe defense of contributory negligence; for, when a passenger knows orshould have known that the driver is not exercising that degree of carecompatible with the safety of the passenger, failure to warn, protest ormake a reasonable attempt to leave the ar will constitute contributorynegligence, barring the passenger's' right to recovery.

The driver's tragedy of plunging into a canal and drowning was acommon aspect of two cases. In General Portland Cement Co. v. Walker °

the deceased was backing his truck at night on a lighted company road.A section of the road caved in, and the truck fell into a canal. There wereno witnesses to the accident. The plaintiff alleged failure to maintain theroad in proper condition' The court affirmed a judgment on a jury verdictfor the plaintiff, noting that although a motorist backing when he cannotsee behind him and there is no one present to guide him is guilty of con-tributory negligence, the road in this instance was lighted and the deceasedwas familiar with the road. Nothing justified a ruling of contributory negli-gence as a matter of law. The deceased in City of Hialeah v. Revels9 hadone or two beers and started to drive home. He was found two monthslater in a canal. The suit against the city was based upon failure to markor barricade the area between the canal and the road. Judgment on a

88. Abrams v. Gresham, 131 So.2d 207 (Fla. App. 1961).89. 113 So.2d 414 (Fla. App. 1959). Followed in the connected case of Smart v.

Harris, 113 So.2d 418 (Fla. App. 1959).90. 293 F.2d 294 (5th Cir. 1961).91. 123 So.2d 400 (Fla. App. 1960), cert. denied, .129 So.2d 141 (Fla. 1961).

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verdict for the plaintiff was affirmed, the question of contributory negligencehaving been properly decided by the jury.

II. STATUTORY LIABILITY

The liability of 'owners of dogs is importantly affected by applicableFlorida statutes. 2 Several cases involving dog owners liability were notedUnder the last Survey, but were noticeable by reason of their absence duringthe period of the present Survey. This may indicate either that dogs arebetter trained or that people are more careful.

Overconcentration on the common law concepts may lead to failureto note the existence or the significance of applicable statutes and ordinances.Statutes may not only affect the substantive law, but also may prevent themaintenance of an action.

A. Statutes Affecting the Right to Maintain an Action

The Third District Court of Appeal, in response to a certified question,held that Florida follows the common law rule on the nonassignability ofa personal injury'claim, and, absent statutory authority permitting the waiveror the assignment of the right to bring an action under the wrongful death,statute,93 the right of action could not be waived or assigned in favor of aperson in an inferior class by a person occupying a superior position.94 Thesame court held that a compensation carrier, required under the FederalLongshoreman's and Harbor Worker's Compensation Act 95 to pay benefitsto a surviving widow, could maintain an action since the federal statuteprovided for such an assignment and took precedence over state law.96

Plaintiff and her husband were injured when 'the automobile in whichthey were riding struck two black angus cows at night. 97 The husbandsubsequently died. The court directed a verdict for the defendants sincethe fact that cows were running at large on the highway did not justifyan inference that the owners had violated the Warren Act.9 , Liability under

92. FLA. STAT. §§ 767.01, .04 (1961).93. FLA. STAT. § 768.02 (1961).94. Clar v. Dade County, 116 So.2d 34 (Fla. App. 1959). The question which

the circuit court considered to be without precedent in Florida was: "May the right ofaction for wrongful death conferred by the statute (§ 768.02, Fla. Stat., F.S.A.) upon aminor child of the deceased, be waived or assigned to the Administrator?" Id. at 35.

95. 33 U.S.C. § 933(b) (1958). "Acceptance of such compensation under anaward in a compensation order filed by the deputy commissioner shall operate as anassignment to the employer' of all right of the person entitled to compensation to recoverdamages against such third person."96. United States Fid. & Guar. Co. v. Reed Constr. Corp., 132 So.2d 626 (Fla.App. 1961). The complaint sought damages under FLA. STAT. § 768.02 (1961).

97. Gordon v. Sutherland, 131 So.2d 520 (Fla. App.), cert. denied, 135 So.2d742 (Fla. 1961).

98. FLA. STAT. §§ 588.14-.15 (1961).

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the act is limited to an owner who intentionally, wilfully, carelessly or negli-gently suffers or permits livestock to run at large or stray upon the publicroads.

The decedent was killed in an automobile accident by the negligenceof the defendant. He was survived by his widow and by two minor childrenwho lived with his ex-wife. The widow brought an action under thewrongful death act. However, her claim was settled and the action dis-missed. The widow then attempted to bring an action on behalf of theminor children. It was held that no action could be maintained by thechildren if there was a widow living, even though the children were by aformer marriage and were not compensated for the loss of the father.99

It was held that a father could not maintain an action in tort againstan unemancipated minor child for the death of another minor child.'00

The court, in deciding the case, pointed out that statutory emancipa-tion' 01 was not alleged and the record was devoid of any showing of acomplete severance of the filial tie.

A wife commenced an action against her husband after their marriagefor personal injuries received before their marriage. The plaintiff wifeargued that the dismissal of her action deprived her of her constitutionalright to sue her husband for the pre-nuptial tort. The court held that thecause of action was not cancelled or purged by the marriage, but the rightwas merely abated or suspended by the marriage.10 2 The wife's only remedyin this situation would seem to be to divorce her husband.

B. Jones and Federal Employers' Liability Acts

The Jones' 0 3 and Federal Employers' Liability Acts10 4 continued toproduce considerable litigation in the Florida and federal courts. In Gaymonv. Quinn Menhaden Fisheries, Inc.,10 5 a seaman disappeared from a fishing

99. Randolph v. Clack, 113 So.2d 270 (Fla. App. 1959).100. Meehan v. Meehan, 133 So.2d 776 (Fla. App. 1961). Russell v. Meehan,

141 So.2d 332 (Fla. App. 1962) was an action by the administrator of the estate ofthe deceased minor. The court concluded that while the nominal plaintiff was theadministrator of the estate of the minor decedent, the decedent's father was the realparty in interest as the decedent's heir at law. The court held that the facts sufficientlyestablished a defense in the nature of estoppel by judgment, "To hold otherwise woulddo violence to the rationale of the rule that a parent or his representative cannot main-tain an action in tort against an unemancipated minor child, that rationale being 'the neces-sity for the encouragement of family unity and the maintenance of family discipline.! "Id. at 333.

101. FLA. STAT. § 62.23 (1961).102. Amendola v. Amendola, 121 So.2d 805 (Fla. App. 1960). For a different view

as to the right of the wife to sue her husband for an antenuptial tort, see the dissentingview of Roberts, J. in Amendola v. Amendola, 118 So.2d 13, 14 (Fla. 1960). Thesupreme court transferred the appeal to the district court because of lack of jurisdiction.

103. 46 U.S.C. § 688 (1958).104. 45 U.S.C. §§ 51-60 (1958).105. 118 So.2d 42 (Fla. App. 1960).

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boat tied up in port and the drowned body was found two days later. Theboat was not equipped with toilet facilities for the crew and it was customaryfor them to relieve themselves over the side of the boat, suspending them-selves in space outside the boat by holding to its top railing. The courttook judicial notice of the risk involved and reversed a summary judgmententered for the employer. The court pointed out that a relevant decisionof the United States Supreme Court was not available to the trial courtat the time the judgment was entered. In Connor v. Butler,106 as in Gaymon,the plaintiff did not know how or why the accident occurred. It now seemssettled law that under the Jones Act and the Federal Employers' LiabilityAct it is not necessary to show that the employer's negligence was theproximate cause of the injury or death complained of, but that it issufficient to establish a jury question simply by showing some negligence onthe part of the employer, coupled by direct or circumstantial evidence to theinjury or death of an employee.

Under certain circumstances the fact that a vessel is under-manned maybe found to constitute unseaworthiness or negligence under the Jones Act.In reversing the lower court the opinion in Fribley v. Bebe, Inc.10 7 pointedout the very liberal standards established by the United States SupremeCourt l0 8 and recognized by the Florida Supreme Court'0 9 concerning theminimal quantum of proof necessary to uphold a jury verdict under theJones Act and FELA.

There were six FELA cases during the period surveyed. 110 Two pro-duced holdings that the railroad's liability was a jury question under theliberal federal rule of liability if employer negligence played any part, eventhe slightest, in producing the injury or death for which damages aresought."' A widow instituted suit under the FELA on behalf of herselfand five children aged ten, twelve, fifteen, sixteen and twenty."12 Theverdict was returned for 150,000 dollars (50,000 for the widow and 20,000

106. 361 U.S. 29 (1959). "The proofs were sufficient to submit to the jury thequestion whether employer negligence played a part in producing the petitioner's injury."Ibid.

107. 121 So.2d 446 (Fla. App. 1960).108. Connor v. Butler, 361 U.S. 29 (1959).109. Atlantic Coast Line R.R. v. Barrett, 101 So.2d 37 (Fla. 1958).110. Martin v. Atlantic Coast Line R.R., 289 F.2d 414 (5th Cir. 1961) (damages);

Tate v. Jacksonville Terminal Co., 127 So.2d 702 (Fla. App. 1961) (Railroad Retire-ment Board entitled to reimbursement out of the employee's judgment for benefitspaid him); Atlantic Coast Line R.R. v. Ganey, 125 So.2d 576 (Fla. App. 1960), 15U. MI AMI L. REV. 420 (1961). In the Ganey case the court held that "absent legisla-tive authority, where a cause of action accrues to one in the State of Florida, and hecorrectly elects the venue of his action in accordance with the appropriate venue statute,a motion to dismiss or to transfer the action to another court or jurisdiction within thisstate, for purposes of trial convenience, is unauthorized .... ." d. at 580.

111. McCloskey v. Louisville & N.R.R., 122 So.2d 481, 484 (Fla. App. 1960);Butler v. Gay, 118 So.2d 572, 573 (Fla. App.), cert denied, 122 So.2d 189 (Fla. 1960).

112. Butler v. Williams, 133 So.2d 109 (Fla. App. 1961).

5:56 UNIVERSITY OF MIAMI LAW REVIEW

for each child). The court remanded to the circuit court with directionsto enter an appropriate remittitur as to the children or in the alternative'to grant a new trial on the question of damages. The court pointed out that

Giving the children the most favorable benefit of the jury's com-pensation to them, by leaving undisturbed the allocation of$20,000 to the youngest . . . excessiveness became clear when $20,000was allowed to Wendell who would attain his majority in a littlemore than one year.113

The court held that a verdict in an FELA action is susceptible toa remit-titur order when tried in a state court.

C. Railroad Operation

Railroad crossing accidents were involved in nine cases. In one" 4. ajudgment was reversed because the verdict was clearly contrary to themanifest weight of the evidence. In a second trial of the case the plaintiffannounced that she had no additional evidence which would tend to estab-lish the railroad's liability, and the court entered summary judgment for therailroad. This'was affirmed on appeal." 5

Discussion of the "presumption statute"" 6 in counsel's opening argu-ment n 7 and the reading of the statute to the jury as part of the court'scharge 18 were held to be prejudical error. In five of the other seven cases,liability was held to be a jury question."" In one case it was held that therailroad was entitled to a directed verdict 20 and in another the applicationof the standing train doctrine' 21 in a case in which a motorist crashed intoa moving train resulted in the affirmance of a summary judgment for therailroad.

113. Id. at 110114. Atlantic Coast Line R.R. v. Walker, 113 So.2d 420 (Fla. App. 1959).115. Walker v. Atlantic Coast Line R.R., 121 So.2d 713 (Fla. App. 1960).116. FLA. STAT. § 768.05 (1961).117. Butler v. MacDougal, 120 So.2d 832 (Fla. App.), cert. denied, 125 So.2d 873

(Fla. 1960).1.18. Atlantic Coast Line R.R. v. Walker, 113 So.2d 420 (Fla. App. 1959).119. Tyus v. Apalachicola No. R.R., 130 So.2d 580 (Fla. 1961) (conflict as to

whether signals given); Butler v. Phily, 133 So.2d 337 (Fla. App. 1961) (failure to giveadequate warning of train's approach and to maintain unobstructed view of right of way);Weeks v. Atlantic Coast Line R.R., 132 So.2d 315 (Fla. App. 1961) (flagman at crossingwaved red flag although gates and signal 'lights at crossing not in operation); Jones v.Atlantic Coast Line R.R., 117 So.2d 234 (Fla, App. 1960); Atlantic Coast Line R.R.v. Hogan, 114 So.2d 29 (Fla. App.), cert. denied, 115 So.2d 414 (Fla. 1959).

120. O'Keefe v. Butler, 126 So.2d 764 (Fla. App. 1961) (unobstructed view ofthe track). The court pointed out that any other conclusion would impose a "stop, lookand listen" burden on the train at all crossings. Id. at 767.

121. Massey v. Seaboard Air Line R.R., 132 So.2d 469 (Fla. App. 1961). Thestanding train doctrine may be expressed as: "The train remaining stationary on thecrossing, ipso facto, could not be the proximate cause of the injury, but the proximatecause was the driving of the car into the freight train while it was standing on thecrossing, or. the plaintiff's own negligence." Clark v. Atlantic Coast Line R.R., 14.1Fla. 155, 158, 192 So. 621, 623 (1939).

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In Louisville 6 N.R.R. v. Adams12 2 the plaintiff was injured when thecar in which she was riding derailed as a result of a broke'n rail. The rail-road introduced evidence as to the frequency of inspection by electronictesting devices and expert testimony as to the frequency of inspection onother railroads. In holding the railroad liable for the highest degree of carefor the safety of its passengers, the federal court applied Florida law that"evidence of custom is not conclusive proof of diligence." 123 In anotheraction the court approved a summary judgment for the plaintiffs on theissue of liability when passengers were injured in a derailment accident. 124

In the Bowe v. Butler125 case, the plaintiff was injured when a stringof boxcars was "kicked" against the box car in which he was working. Thecourt concluded that when flying switch activities are conducted in aswitching yard, it places a duty on the railroad to make a 'strong showingof due care. In reversing the court pointed out that contributory negligence,under the comparative negligence rule, did not bar the plaintiff from- averdict, but may reduce the amount of his recovery.126

In another accident occurring during switching operations, the plain-tiff was injured as- he was walking to work at'night through the yards. 1 27

"No Trespassing" signs were posted prominently about the yards, yet theplaintiff testified that he had taken this route for about a year withoutseeing any of the signs. Although there were no witnesses to the accident,the court reversed a summary judgmnt for the defendant. The courtpointed out that the moving party must establish the true factual pictureand thereby remove any serious doubt as to the existence of any genuineissue of material fact to satisfy the burden of showing the absence of agenuine issue of material fact.'28

Plaintiff's husband was- found dead on the tracks in a Miami yardwhere private citizens frequently crossed through and among the trains. Itwas assumed by all parties that he had been passing under a train when thetrain moved without warning. In reversing a judgment on a jury verdictfor the plaintiff, the court held that the decedent had placed himself in aposition of peril in which his discovery was nearly impossible and no ordi-nary warning would have availed him. 1 29

In Apalachicola No. R.R. v. Tyus 30 the district court reversed the

122. 292 F.2d 153 (5th Cir. 1961).123. Id. at 155.124. Butler v. Borowsky, 120 So.2d 656 (Fla. App. 1960).125. 133 So.2d 347 (Fla. App. 1961).126. Id. at 354.127. McCuteheon v. Seaboard Air Line R.R., 133 So.2d 660 (Fla. App. 1961).128. Id. at 662.129. Butler v. Barr, 114 So.2d 700 (Fla. App.), cert. denied,. 116 So.2d 775

(Fla. 1959).130. 114 So.2d 33 (Fla. App. 1959), quashed, 130 So.2d 580(Fla. 1961).

1962]. .:


judgment in the trial court for the plaintiff and remanded the cause withdirections that a judgment be entered for the defendant railroad. The courtpointed out that

As to whether a proper warning was given, all of the defendant'sand most of the plaintiff's witnesses testified that the whistle wasblown at least a few seconds before the accident. The witnesseswho attempted to establish that the whistle was not blown testifiedmerely that they 'didn't hear it blow."'3

In reversing the district court and reinstating the judgment of the trialcourt, the supreme court pointed out that the statement in the opinionmust'be given the connotation that some of the witnesses testified to thecontrary and the resolution of the question was properly for the jury.13 2

The case may be a classic in demonstrating the extent to which plaintiff'scounsel can go in closing remarks to the jury in railroad cases.' 33

D. Federal Tort Claims Act

A landmark case under the Federal Tort Claims Act 84 involved thealleged negligence of the Government in an unsuccessful attempt to rescuethe crew of a vessel.' 3 5 As the asserted tort occurred more than a marineleague from shore, the applicable remedy for the wrongful death was theDeath on the High Seas Act.' 36 The Government in its brief argued

This case is the first one in which a district court has held theUnited States liable for the failure of its employees to reach a vesselin distress in time to save her crew. Indeed, . . . this case is thefirst in which any person has been held liable merely for failing toarrive at the scene of a vessel marooned in a storm in time to rescueher crew.'8

7

The court held the Government liable when the failure was due to thenegligence of Government operators ashore in reporting the location of thedistressed vessel and in directing vessels to the location.

III. COMMON LAW NEGLIGENCE ACTIONS

Since the relationship between the parties often controls the outcomeof the case, the common law cases are collected according to the relationships

131. Id. at 36.132. Tyus v. Apalachicola No. R.R., 130 So.2d 580 (Fla. 1961).133. See dissenting opinion of O'Connell, J., id. at 588.134. 28 U.S.C. §§ 1346, 1402, 1504, 2110, 2401, 2411, 2412, 2671-80 (1958).135. United States v. Gavagan, 280 F.2d 319 (5th Cir. 1960), cert. denied, 364

U.S. 933 (1961).136. 46 U.S.C. §§ 761-68 (1958).137. 280 F.2d at 321.

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involved where possible. It will be obvious that the major portion ofthe litigation has centered around the duty of care owed to the plaintiff bythe defendant. Several new categories have been added because of thelarge number of cases or the importance of the litigation in question.

A. Landlord and Tenant

In a case of first impression, the lessors agreed to repair the roof of theleased premises although under no obligation to do so under the terms ofthe lease. While the repairs were being made, by an independent con-tractor hired by the lessor, rain came through the roof and damaged theplaintiff's property stored in the building. Plaintiff sued the lessors forfailure to exercise proper control over the contractor. In reversing the lowercourt's dismissal of the action, the court held that a lessor who gratuitouslyundertakes to make repairs on leased premises may not absolve himselffrom liability by employing an independent contractor.138 The case hasbeen criticized because the court has made the landlord an insurer foreverything done by the contractor within the scope of his employment. 13 9

An employee of the tenant-operator of a filling station brought anaction for personal injuries sustained when the safety flaps on a grease rackfailed. An automobile rolled off the rack and crushed the plaintiff's head.The plaintiff recovered a judgment for 150,000 dollars against the oilcompany which leased the premises to the plaintiff's employer and furnishedthe grease rack under terms of an "equipment loan agreement." In affirm-ing the judgment the court held that there was sufficient evidence to supportthe jury's determination that the oil company had undertaken to maintainthe grease rack in a reasonably safe condition.140 The court found thatthe case involved a bailment rather than a lease of the rack, but that thesame legal principles governed. The defendant oil company invoked therule that a lessor is not liable for injuries to one on premises in possessionof a lessee unless the condition causing injury is a violation of law, is apre-existing defect in construction, is inherently dangerous, or unless thelessor undertakes to keep the premises in repair. The plaintiff did notchallenge the rule, but rather relied upon the undertaking to keep in repair.141

138. Easton v. Weir, 125 So.2d 115 (Fla. App. 1960), cert. denied, 129 So.2d141 (Fla. 1961).

139. 15 U. MIAMI L. REv. 412 (1961).140. Standard Oil Co. v. Foster, 280 F.2d 912 (5th Cir. 1960).141. Id. at 914. For other cases see Robinson v. Foland, 124 So.2d 512 (Fla. App.

1960) (appeal dismissed where appellant failed to include record on appeal and courtheld that under such circumstances reversible error could not be demonstrated); Meyer v.Pitzele, 122 So.2d 228 (Fla. App. 1960) (Indiana law applied); Duchaine v. GroscoRealty, Inc., 121 So.2d 679 (Fla. App. 1960). Duchaine involved the breach of the termsof a lease in a shopping center. Although it was assumed that the acts complained of didconstitute breaches of covenants of the lease, the plaintiffs could present no evidence toestablish that they had sustained loss or damage.

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B. Common Carriers

It is a well established rule of law that once the relationship of carrierand passenger is established, it will not ordinarily terminate until the pas-senger has safely alighted at his destination. When a cab passenger, whohad temporarily alighted from the cab, was shot by the cab driver in anargument over the driver's refusal to transport him to his original destina-tion, it was held to be a question of fact as to whether the passenger-carrierrelationship had ended. 142

Greyhound Corp. v. Morgan143 involved a runaway boy who wasplaced upon a bus in Georgia for return to his parents in Miami. Itappeared from the evidence that the boy had opened a bus window andjumped from the bus. The bus driver had looked back several times inthe course of the trip to check on the boy. The court, in directing a verdictfor the carrier, held that in guarding a passenger from injury which is notusual or incident to ordinary travel, a carrier is held only to the use ofreasonable care.

A passenger was injured on board ship when descending from theupper bunk in a cabin. There was no evidence that the ladder was defec-tive by design or otherwise and it did not collapse. The court reverseda verdict for the plaintiff and held that while a carrier under law is requiredto exercise the highest degree of care for the safety of its passengers, thisduty does not extend to the point of making the carrier an insurer of thesafety of its passengers.144 The testimony of a partially blind passenger,injured when he walked into a bus door, was sufficient to condemn hisconduct as the negligence which proximately caused his injury. 45 Butwhen a passenger's mental or physical weakness is apparent, or is brought tothe attention of the carrier, the high degree of care or caution ordinarilyimposed on carriers requires it to take notice of the passenger's disabilityand provide accordingly. 46

In Blackman v. Miami Transit Co.,47 a passenger who was sitting ona longitudinal seat fell over or was thrown forward and struck his head againsta metal bar when the bus stopped. The trial court directed a verdict for thebus company. The Third District Court of Appeal held that testimonythat the bus was going faster than usual coupled with testimony thatit stopped suddenly or quickly was not sufficient evidence of negligence torequire the trial judge to submit the case to the jury and, in the absenceof showing the reason or circumstances of the bus stopping, the evidence

142. Henderson v. Tarver, 123 So.2d 369 (Fla. App. 1960).143. 118 So.2d 245 (Fla. App.), appeal dismissed, 122 So.2d 402 (Fla. 1960).144. McCormick Shipping Corp. v. Warner, 129 So.2d 448 (Fla. App. 1961).145. Towle v. Greyhound Corp., 132 So.2d 798 (Fla. App. 1961).146. Sumpter v. Tamiami Trail Tours, Inc., 123 So.2d 732 (Fla. App. 1960).147. 125 So.2d 128 (Fla. App. 1960).

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did not make out a prima facie case of liability. In the case of JacksonvilleCoach Co. v. Rivers,148 the supreme court quashed a decision of the FirstDistrict Court of Appeal on virtually identical facts as in the Blackmancase, but with a contrary holding. As a result of these cases it is evidentthat the passenger must make out a prima facie case of negligence beforeit is incumbent upon the carrier to offer evidence pertaining to the circum-stances surrounding the stop so as to negate negligence.

Upon a showing that goods are received by a carrier in good order andare delivered to the consignee in bad order, a presumption arises that thedamage was caused by negligence of the carrier. 149 Liability in this instanceof shipment of lettuce in interstate commerce was controlled by federalstatutes150 under which a carrier is liable only for negligence.

C. Distribution of Electricity

The generation and distribution of electrical energy is highly dan-gerous to life and property. Electricity, the basic commodity of apower company, coursing invisibly through the quiet of uninsulatedhigh tension wires, of itself sounds no warning as to its lethalnature. ... [T]hose who operate such a facility have the obligationto exercise care and vigilance in proportion to the peril involved.15r

The above statement indicates the extent of the obligation placed uponpower companies and justifies the segregation of cases involving electricalinjury.

The defendant power company knew that a crane, stored upon itspremises, would be moved under high tension wires. No warning was issued,no signs were placed at the scene, no safety man was present at the time ofthe accident and the wires had not been de-energized. Decedent waselectrocuted while holding a cable attached to the crane as the crane boomtouched the high tension wires. Upon these facts it was held that a primafacie case of negligence had been made out by plaintiff.152 The case wasremanded for trial as to issues of contributory negligence.

In another accident in which plaintiff's decedent was electrocutedwhen the boom of a crane touched a power line, the cases hinged uponwhether the power company had knowledge of construction work of such

148. No. 31,655, Fla., July 13, 1962, quashing 134 So.2d 869 (Fla. App. 1961).The supreme court permitted the filing of amicus curiae briefs in the Rivers case bythe attorneys representing the defendant bus company in the Blackman case, whichindicates the importance of the opinion.

149. Martin v. E. A. McCabe & Co., 113 So.2d 879 (Fla. App. 1959).150. 49 U.S.C. §§ 20(11) -(12) (1958).151. Aheam v. Florida Power & Light Co., 129 So.2d 457, 461 (Fla. App. 1961).152. Ahearn v. Florida Power & Light Co., 129 So.2d 457 (Fla. App. 1961); see

same case 113 So.2d 751 (Fla. App. 1959), 118 So.2d 21 (Fla. 1960), remanded onprocedural grounds.

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a nature that use of a crane could be expected and also questions as tonotice of newly energized wires. Both the contractor' 53 and the powercompany'54 were held liable, although there was evidence that the decedentknew that the lines had been completed and energized.

In City of Mount Dora v. Voorhees'55 an employee of an independentcontractor engaged by the city to remove overhead power lines was killedwhen the old lines came in contact with energized lines. Although therewas evidence of negligent control of the operation by the city superintendentof utilities in directing the operation, the court upheld judgment for thecity upon the basis that there was not sufficient evidence to support thecontention that he assumed detailed direction of the servant of the inde-pendent contractor. The opinion seems to apply a different standard ofduty to de-energize the lines or to give warning to a city than is appliedin the power company cases; the opinion relies heavily upon the independentcontractor relationship and ignores as a controlling factor the high duty ofcare placed upon those who distribute electricity.

In another power company case the court charged the jury, "if you findthe death of the deceased ...was due solely to an accident, your verdictshould be for the defendant."' 6 While the court did not consider thecharge tantamount to a charge on an unavoidable accident, it was consid-ered reversible error because the several definitions of the word "accident"tend to confuse the jury and are frequently taken to mean that if the actwas not intentional the plaintiff cannot recover.

D. Doctor - Patient

The decisions in this area developed no new law although they involvedthe unusual situations typical of doctor-patient relationships. One dentisthad the misfortune to be sued in two actions. In the first suit 5 7 he wascharged with wrongfully removing the plaintiff's false teeth from her mouthfor the purpose of exacting (extracting?) from the plaintiff the balance ofthe fee due him, and keeping/the teeth for a period of hours. In reversinga summary judgment for the defendant because of unresolved questions offact, the court observed the plaintiff might better have brought the actionunder a count of trespass to the person. In a second action'58 the samedentist was sued for negligent treatment. The court held that there wasno need for expert testimony to inform the jury that for a dentist, while

153. L. E. Myers Co. v. Barrs, 127 So.2d 895 (Fla. App. 1961).154. Florida Power & Light Co. v. Barrs, 127 So.2d 896 (Fla. App. 1961).155. 115 So.2d 586 (Fla. App. 1959), cert. denied, 119 So.2d 293 (Fla. 1960).156. McCollum v. Florida Power & Light Co., 125 So.2d 754 (Fla. App. 1961).157. Marans v. Stang, 124 So.2d 891 (Fla. App. 1960).158. Merola v. Stang, 130 So.2d 119 (Fla. App. 1961).

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using a drill on a tooth, to slice through a patient's face to the point of thechin was not the accepted method or procedure in grinding a tooth andcould be found to be negligence.

Brown v. Swindal,15 9 an action based upon alleged negligence in theextraction of a patient's tooth, involved the important question as to experttestimony being required in malpractice actions. The general rule is that,except in rare cases, neither the court nor the jury should be permitted todecide arbitrarily what is or is not a proper diagnosis or an acceptablemethod of treatment of a human ailment. 160 Since the plaintiff offered noexpert testimony and the defendant testified that the extraction was per-formed and the treatment was administered in the usual manner, the courtapproved a directed verdict in defendant's favor. The court refused tofind this one of the rare cases justifying an exception to the rule.

Bir v. Foster"' was an action for injuries resulting from unnecessarysurgery. Plaintiff alleged negligence in an examination and diagnosis oftumors on the uterus at a time when she was actually pregnant, as disclosedby the subsequent operation. The court held that the complaint stated acause of action on the theory that the physicians could have ascertained theidentity of the malady, that surgery constituted improper treatment, andthat neither physician performed the examination or used methods ofdiagnosis usually approved and practiced by other members of the medicalprofession in the community possessing average skill, learning and judgment.

The court reversed a verdict for a defendant-physician because of thecharge that in an action for malpractice the professional character andreputation of the physician was the most important matter at stake. 162

Two actions were brought against hospitals. One action, 63 broughtby a charity patient in a county hospital, was dismissed upon the basisthat the county was immune from liability. Another action 64 was broughtagainst a hospital for negligently failing to provide adequate supervisionfor a new born baby, which allegedly strangled on mucus, causing extensiveinjuries. Although the defendant introduced evidence of due care and.theplaintiff presented no contrary evidence, the court held that a hospital

159. 121 So.2d 38 (Fla. App. 1960).160. Atkins v. Humes, 110 So.2d 663, 666 (Fla. 1959).161. 123 So.2d 279 (Fla. App. 1960).162. Zaretsky v. Jacobson, 126 So.2d 757 (Fla. App. 1961). For previous history

see 99 So.2d 730 (Fla. App. 1958); 114 So.2d 447 (Fla. App. 1959), quashed, 118So.2d 787 (Fla. 1960). Florida law requires a doctor to defend on his conduct ratherthan his reputation. Stauf v. Holden, 94 So.2d 361 (Fla. 1957). For, other malprac-tice actions see Levin v. Rosenblum, 133 So.2d 577 (Fla, App. 1961) (summary judgmentaffirmed); Olschefsky v. Fischer, 123 So.2d 751 (Fla. App. 1960).

163. Smith v. Duval County Welfare Bd., 118 So.2d 98 (Fla. App. 1960).164. Sprick v. North Shore Hosp., Inc., 121 So.2d 682 (Fla. App.), cert. denied,

123 So.2d 675 (Fla. 1960).

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is bound to exercise toward a patient such reasonable care as his knowncondition may require, and it remained for the jury to decide whether thehospital had exercised proper care under the circumstances.

E. Manufacturers and Suppliers

In Walker v. National Gun Traders, Inc.,'65 action was brought forinjuries sustained by the minor plaintiff when an allegedly defective revolver,which the defendant had sold to a third person, discharged. A spur hadbeen filed off the safety notch and the defect was not visible or apparent.The court held that the complaint stated a cause of action and reverseda summary judgment for the defendant. The decision rested squarely onthe opinion in Tampa Drug Co. v. Wait,, 6 which determined that theduty of a distributor of an inherently dangerous commodity extends to thereasonable foresceability of injury that might result from the use of thecommodity. The court pointed out that the distributor of an inherentlydangerous commodity such as a second hand revolver has a duty to thosemembers of the public who may be injured by the ordinary use of theproduct. 6 T

The care commensurate with the use of a dangerous agency was heldto be applicable in a situation in which a gas company sold, installed andrepaired a gas range. 168

F. Invitees, Licensees and Trespassers

An engineer, with the help of a friend, was removing the bilge pumpfrom a cruiser. Before removing the pump it was decided to pump waterout of the bilge. When the pump was started an explosion occurred,fatally injuring the friend. It was held that, although performing a minorservice for a friend, the decedent was a licensee and not an invitee. 6 9 Thisaction, brought in admiralty, involved two other applications of Floridalaw. The court declined to adopt the "active" and "passive" negligencetheories as to licensees since Florida has declined to do so, pointing outthat it is the minority view. Had the decedent survived, the injury wouldhave been governed by admiralty law even though the accident occurredon navigable waters within the state; the widow could not bring an actionother than under the Florida wrongful death statute, 170 and could notrecover under it because of the characterization of the decedent as a

165. 116 So.2d 792 (Fla. Apn. 1960).166. 103 So.2d 603 (Fla. 1958).167. 116 So.2d at 793.168. Russell v. Jacksonville Gas Corp., 117 So.2d 29 (Fla. App. 1960).169. Emerson v. Holloway Concrete Prods. Co., 282 F.2d 271 (5th Cir. 1960),

cert. denied, 364 U.S. 941 (1961). For connected case see 293 F.2d 474 (5th Cir. 1961).170. FLA. STAT. §§ 768.01-.02 (1961).

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licensee. The dissenting justice vigorously criticizes the court's interpreta-tion of the Florida statute.171 Both the majority and the dissenting justicesfelt obliged to quote Dean Prosser:

The result was that it was more profitable to kill the plaintiff thanto scratch him, and that the most grievous of all injuries left thebereaved family of the victim, who frequently were destitute,without remedy. 172

Cochran v. Abercrombie,173 a case of first impression, again involveda visitor assisting his host. This court also refused to adopt the distinctionbetween "active" and "passive" negligence. The court noted that incidentalmotives of a social guest will not alter his status from a licensee to thatof invitee.

Plaintiff, who was assisting a friend who had rented a room in a hotel inbringing articles into the hotel, was an invitee of the hotel and not alicensee. 174 The invitee status of the guest in the hotel or of the guestof the guest is not dependent upon whether the rent is fixed by the day,by the month, or by the year, and it is not material in determining thestatus of a guest of a hotel guest whether the latter is referred to as "guest"or "tenant."'175

A stablehand at a race track, injured when a race horse bolted, washeld to be an invitee of the track, although not in the track's employ, sincehis duties were connected with the track's business. 76 It was held to bereversible error to instruct as a mattter of law that a business invitor isunder no duty to light a parking lot which is open to use by his invitees.177

It was also held that a landlord is under a duty to warn a licensee of anydangerous condition known to him, but not as to latent defects. 78

The "attractive nuisance" doctrine was involved in three cases. In theabsence of any allegation that a swimming pool constituted a trap or latentdanger, the complaint failed to constitute a cause of action.179 In anothersuit a nine-year-old child was injured when a bundle of roof trusses, deliveredby the defendant contractor to defendant builder's building site, fell and

171. 282 F.2d at 278.172. Id. at 274, 278; PROSSER, TORTS 710 (2d ed. 1955).173. 118 So.2d 636 (Fla. App. 1960).174. Ortner v. Linch, 128 So.2d 152 (Fla. App. 1960), cert. denied, 138 So.2d

340 (Fla. 1961).175. Ibid.176. Gulf Stream Park Racing Ass'n v. Miller, 119 So.2d 749 (Fla. App.), cert.

denied, 125 So.2d 872 (Fla. 1960).177. Reed v. Ingham, 125 So.2d 301 (Fla. App. 1960).178. Tomei v. Center, 116 So.2d 251 (Fla. App. 1959), cert. denied, 120 So.2d

616 (Fla. 1960).179. Banks v. Mason, 132 So.2d 219 (Fla. App.), cert. denied, 136 So.2d 348

(Fla. 1961).

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broke the child's leg.' s0 The court held that Florida still adheres to therule of nonliability of the delivering contractor, although the more modernview holds the contractor liable for foreseeable harm caused by his negli-gence. The builder's liability was considered to be a jury question.

A twelve-year-old minor was injured by the action of another minorwho threw slaked lime into his eye as they were playing around a houseunder construction. The court indicated an intent to direct a verdict forthe defendant contractor because the house rather than the mortar boxconstituted the attractive nuisance, and the event which caused the injurywas not foreseeable. The plaintiff took a nonsuit and appealed. The dis-trict court held that the materials and tools around a construction site couldbe considered part of the attractive nuisance presented by the house itself,and that questions of foreseeability were for the jury.' 8 ' The court alsopointed out that the doctrine may be applicable to a general contractorwho has overall charge of construction even though the instrumentalitymay have been left accessible by a subcontractor.

G. Care Owed Invitees

Injuries to invitees continued to produce a large number of cases.Although the bulk of the cases involved falls, there were a number of casesinvolving other types of accidents, including several unique factual situations.

1. INJURIES NOT INVOLVING FALLS

A patron in a theater, being escorted to the lobby by the manager uponsuspicion of being a child molester, broke away from the manager andbrushed past the plaintiff knocking her against a seat and onto the floor.A jury verdict for the plaintiff was reversed, the court holding that knowledgethat a person may be a child molester is not knowledge that he couldbecome violent, nor is it sufficient knowledge from which defendant's em-ployees could have reasonably anticipated violence which would or mightresult in injury to another person.' 82

The operator of a drive-in food store permitted automobiles to parkperpendicular to the front of the store and had not erected a barrier orcurb in front of the store. A motorist "drove in" injuring the plaintiff.The court held that the store operator had breached no duty to the plaintiffand that the accident was not foreseeable. 188

An innkeeper must inspect premises newly opened for occupancy to

180. Baader v. Looby, 126 So.2d 745 (Fla. App. 1961).181. Fouraker v. Mullis, 120 So.2d 808 (Fla. App.), cert. denied, 123 So.2d 674

(Fla. 1960).182. Wometco Theatres Corp. v. Rath, 123 So.2d 472 (Fla. App. 1960).183. Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla. App. 1961).

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determine whether they meet the requirement that an innkeeper providebusiness invitees with a reasonably safe place for their sojourn. Whetherreasonable inspection would have revealed a defect in a chair was held tobe a jury question. The failure of the chair to support the first occupantof a hotel room newly opened for occupancy warranted an inference thatthe chair was defective.8 4 Another plaintiff was injured when she sat on acanvas stool to try on a pair of shoes. Again it was held to be a juryquestion as to whether the plaintiff could reasonably assume that the stoolwas for customers' use, whether she was an invitee in relation to the stooland whether inspection of the stool was negligently performed.',, Apatron suing store owners for injuries received when a can of wax fell froma shelf onto her leg had the burden of proving that the store owners createdthe dangerous condition and had actual knowledge or should have knownof the condition.'8"

2. SLIP, TRIP AND FALL

Twenty cases involved the duty owed falling plaintiffs. The cases spliteleven to nine in favor of trial by jury. One opinion of the Second DistrictCourt of Appeal includes a sharp criticism of summary judgments in casesinvolving negligence and contributory negligence and is well worth reading.187

In Food Fair Stores, Inc. v. Trusell88 the court cast doubt upon theopinion in Pogue v. Great Atl. 6' Pac. Tea Co., 89 decided by the FifthCircuit Court of Appeals in 1957. The court concluded that Florida deci-sions were interpreted much more broadly in the direction of "storekeeperliability" than was justified. It was further pointed out that the federalcourt in Pogue laid aside and declined to follow the rule of the Floridacourts regarding inferences based on circumstantial evidence. In Trusella customer fell in a store, apparently as a result of slipping on a piece oflettuce; no one knew how the lettuce happened to be on the floor, howlong it had been there or who placed it there. In quashing the decisionof the district court, the opinion pointed out that

It is apparent that a jury could not reach a conclusion imposingliability ... without indulging in the prohibited mental gymnasticsof constructing one inference upon another inference in a situationwhere, admittedly, the initial inference was not justified to theexclusion of all other reasonable inferences. 90

184. Schneider v. K.S.B. Realty & Investing Corp., 128 So.2d 398 (Fla. App. 1961).185. Harvey v. Maistrosky, 114 So.2d 810 (Fla. App. 1959).186. Food Fair Stores, Inc. v. Spinelli, 122 So.2d 41 (Fla. App. 1960).187. Perry v. Broward Drug & Surgical Supply, Inc., 131 So.2d 763 (Fla. App. 1961).188. 131 So.2d 730 (Fla.), quashing 122 So.2d 616 (Fla. App. 1960).189. 242 F.2d 575 (5th Cir. 1957).190. 131 So.2d at 733.

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An architect's deposition that the stairs at a dog track were not con-structed in accordance with good architectural practice and created a dan-gerous condition was the basis for reversal of a summary judgment for thedefendant.' 9' A customer's statement that she "guessed" the tripod overwhich she tripped was clearly visible did not justify a summary judgmentin another action. 192

H. Master - Servant

The degree to which workmen's compensation has superseded mostof the common law master-servant litigation is well illustrated in Grice v.Suwannee Lumber Mfg. Co., 193 in which an employee lost a testicle inthe course of employment when a block of wood flew from a machine.The employee accepted benefits under the act 94 and brought an actionat law against the employer alleging negligence. The court held that byaccepting benefits of the act the employee relinquished his common lawright to compensation for those elements of damages that normally flowfrom the injury but, having no relationship to earning capacity, are notcompensable under the act. The fact that in a particular case the injurysuffered does not in fact result in a loss or diminution of earning capacityis immaterial.

During the course of a robbery attempt in a service station the plaintiff,employed as an attendant, was assaulted, shot and wounded. Held, dangerof injury to an employee from an unlawful or criminal act of a strangeris not a danger from which the employer ordinarily would incur liabilityin the discharge of his duty to furnish a safe place to work for his em-ployees; nor is the employer ordinarily under a legal duty to protect hisemployees from unlawful assaults by strangers. 195

191. Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla. App. 1959), cert.denied, 122 So.2d 408 (Fla. 1960).

192. Purdon v. Cohen, 126 So.2d 575 (Fla. App. 1961). For other slip, trip andfall cases see Holmes v. Forty-Five Twenty-Five, Inc., 133 So.2d 651 (Fla. App. 1961);Hanson v. Shell's City, Inc., 133 So.2d 573 (Fla. App. 1961); Tawell v. SternwheelerCo., 133 So.2d 461 (Fla. App. 1961); Jung Gwong v. Tampa Hotels, Inc., 132So.2d 232 (Fla. App. 1961); Perry v. Broward Drug & Surgical Supply, Inc., 131 So.2d763 (Fla. App. 1961); City of Pompano Beach v. Edwards, 129 So.2d 144 (Fla. App.1961); Caldwell v. Gulf Beach Club, Inc., 127 So.2d 480 (Fla. App. 1961); Kuebler v.Volusia jai Alai, Inc., 126 So.2d 163 (Fla. App. 1960), cert. denied, 131 So.2d 201(Fla. 1961); Reed v. Ingham, 125 So.2d 301 (Fla. App. 1960); Shapiro v. Woolworth,120 So.2d 806 (Fla. App. 1960); Sammons v. Food Fair Stores, Inc., 118 So.2d 231(Fla. App. 1960); Fendrick v. Faeges, 117 So.2d 858 (Fla. App. 1960); Sinopoli v.Courshon, 116 So.2d 659 (Fla. App. 1959); Castillo v. Baker's Shoe Stores, Inc., 115So.2d 427 (Fla. App. 1959); City of Tampa v. Johnson, 114 So.2d 807 (Fla. App. 1959);North Am. Co. v. Landahl, 113 So.2d 588 (Fla. App. 1959); writ discharged, 118 So.2d215 (Fla. 1960); Food Fair Stores v. Moroni, 113 So.2d 275 (Fla. App. 1958), cert.denied, 115 So.2d 414 (Fla. 1959).

193. 113 So.2d 742 (Fla. App. 1959).194. FLA. STAT. ch. 440 (1961).195. Murray v. Osenton, 126 So.2d 603 (Fla, App. 1961).

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Defendant hotel made arrangements for the rental to the plaintiff ofa boat for bone fishing. In rough water the plaintiff was thrown into theair and fell, breaking his back. The hotel's and boat operator's denial ofthe existence of any agency relationship was not conclusive under Floridalaw; the public may rely upon real or apparent agency relationship unless,in the case of apparent authority, the circumstances are such as to put oneon inquiry. 19 6 In another case issues of implied and express authority of thedriver of an automobile were held to be for the jury.1

97

Plaintiff fell in semi-darkness at an area where defendant's newsboyspicked up bundles of papers, which were customarily tied with wire loops,by reason of her foot becoming entangled in such a loop. There was evi-dence which would support an inference that newsboys had been carelessin removing the loops in the past, and that the loop in question was thewire of the defendant. The case concluded that the newsboys were inde-pendent contractors; however, the complaint came under one of the excep-tions to the rule as to nonliability of independent contractors, which ariseswhen the employer gains knowledge of a dangerous situation created by theindependent contractor and fails to halt the operation or correct it.198

Similarly, a duty imposed by ordinance cannot be delegated to an inde-pendent contractor. 19 9 The contractual responsibility of a general contractorto an owner cannot be delegated to a third person in such manner as torelieve the general contractor for a violation of his duty.200

When construction is undertaken without a general contractor, andindependent contractors are engaged to perform portions of the work, anemployee of one contractor, if injured in the course of his work by anotherindependent contractor or his employee, may bring suit against the latterindependent contractor and is not required to resort to workmen's com-pensation.201 Interference or meddling by an owner with a contractor'semployees may result in the exercise of control over employees sufficientto impose liability on the owner. 20 2

I. Warranty

Although the court indicated that the case was not one of first impres-

196. Seaboard Properties, Inc. v. Bunchman, 278 F.2d 679 (5th Cir. 1960).197. Jacobi v. Claude Nolan, Inc., 122 So.2d 783 (Fla. App. 1960).198. Peairs v. Florida Publishing Co., 132 So.2d 561 (Fla. App. 1961).199. Mastrandrea v. J. Mann, Inc., 128 So.2d 146 (Fla. App.), cert. denied, 133

So.2d 320 (Fla. 1961); connected case, Mastrandrea v. Mann, 128 So.2d 201 (Fla.App. 1961).

200. Mills v. Krauss, 114 So.2d 817 (Fla. App. 1959), cert. denied, 119 So.2d293 (Fla. 1960).

201. Floyd v. Flash Welding Co., 127 So.2d 129 (Fla. App.), cert. denied, 133So.2d 643 (Fla. 1961); Cromer v. Thomas, 124 So.2d 36 (Fla. App. 1960), writdischarged, 135 So.2d 420 (Fla. 1961).

202. City of Mount Dora v. Voorhees, 115 So.2d 586 (Fa. App. 1959), cert.denied, 119 So.2d 293 (Fla. 1960).

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sion, the opinion in Canada Dry Bottling Co. v. Shaw203 is written inlanguage clearly indicating the contrary. The plaintiff was injured in openinga bottle of soda. Evidence appeared that the bottle had been damagedunder the cap before the time the bottle had last been filled. The bottlingcompany and the retailer were held liable on the theory of implied warrantyof fitness of the bottle for use.

In a claim for damages to a crop from the use of fertilizer, the defendantinterposed the defense of limitations imposed under the Fertilizer InspectionAct.20 4 The court held that the remedy provided under the act is a cumu-lative remedy, not an exclusive one; the common law remedy remains.20 5

The injured employee of a purchaser of a riding lawnmower brought anaction against the retailer for injuries received when the frame collapsedas a result of metal fatigue occasioned by a latent defect.206 The courtheld that the injured user of the commodity, which was not a foodstuff ora dangerous instrumentality, was not in privity with the retailer, and torecover for injuries he had to bring an action for negligence, which wouldrequire allegations and proof of fault. The court concluded that the deci-sion of the court of appeal was correct in reversing a judgment for theplaintiff, but that the reasoning advanced in the opinion was wrong. Inreaching this decision the court pointed out that the riding lawnmowerinvolved could not be classified under any possible dangerous instrumentalityexception to the privity requirement in a suit against the retailer based uponan implied warranty.

McBurnette v. Playground Equip. Corp.2 0 7 involved an action by athree-year-old child for injuries received in playing on playground equipmentpurchased by the child's father. The district court applied the rule advancedin Carter v. Hector Supply Co.,2os just discussed, and sustained a motionto dismiss against the retailer. The supreme court quashed the actionof the district court on the basis that common sense requires the presump-tion that one in the position of the minor plaintiff in this cause is anaturally intended and reasonably contemplated beneficiary of the war-ranty of fitness for use or merchantability implied by law, and as suchbe stands in the shoes of the purchaser in enforcing the warranty. It isobvious that the close family relationship here was controlling, but thequestion remains as to how close that relationship must be. An even more

203. 118 So.2d 840 (Fla. App. 1960).204. FLA. STAT. cb. 576 (1961).205. Platt v. Kenco Chem. Co., 132 So.2d 27 (Fla. App. 1961).206. Carter v. Hector Supply Co., 128 So.2d 390 (Fla. 1961). For prior history

see 122 So.2d 22 (Fla. App. 1960).207. 137 So.2d 563 (Fla. 1962), modifying 130 So.2d 117 (Fla. App. 1961).208. 108 So.2d 390 (Fla. 1961).

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important question should be answered by the court; did the school boardwhich purchased the lawnmowers in Carter expect its employees to ridethem, or did the school board members intend to mow the school grounds?

The father of a deceased minor brought an action against the supplierof a housecoat which, when worn by the minor, had been consumed byflame causing the minor's death.2 09 The court held that the Floridawrongful death act2 1 0 provides for a right of action thereunder ex contractu,but that the death of minors act211 does not so provide.2 12

J. Defenses in Common Law Cases


The decisions involving the defense of contributory negligence continueto present troublesome problems of interpretation and the courts inclineto holdings that the question is for the jury. Under certain circumstancesthe plaintiff is held guilty of contributory negligence as a matter of law,the question turning upon the knowledge of the plaintiff or whether theplaintiff (usually in trip and fall cases) should have seen the defect.218

The so-called "distraction rule" was accepted in the case of Deane v.Johnston.21 4 In Bashaw v. Dyke215 the court distinguished the Deane caseupon the basis that the plainiff there was not attempting to handle theobject in question, whereas in Bashaw the plaintiff was attempting to movethe object which caused the injury. The opinion points out that Deaneis the only case in Florida applying the rule.21 6

Visibility alone does not settle the issue of contributory negligence inevery case of slipping on a floor or encountering any stationary object.21 7

The question is always whether the plaintiff used due care for his ownsafety, taking into account all the circumstances, of which the visibilityof the object is an important one, but still only one of the circumstances.

209. Latimer v. Sears Roebuck & Co., 285 F.2d 152 (5th Cir. 1960).210. FLA. STAT. § 768.01(2) (1961).211. FLA. STAT. § 768.03 (1961).212. For other warranty cases see Posey v. Ford Motor Co., 128 So.2d 149 (Fla.

App. 1961), prior history 125 So.2d 108 (Fla. App. 1960), subsequent history 138So.2d 777 (Fla. App. 1962), connected case 138 So.2d 781 (Fla. App. 1962); FloridaNursery & Landscape Co. v. Nally, 127 So.2d 700 (Fla. App. 1961); Russell v. JacksonvilleGas Corp., 117 So.2d 29 (Fla. App. 1960); Walker v. National Gun Traders, Inc., 116So.2d 792 (Fla. App. 1960). For a recent survey of manufacturer's liability see Noel,Manufacturer's Negligence of Design or Directions for Use of a Product, 71 YALE L.J.816 (1962).

213. Tweedale v. City of St. Petersburg, 125 So.2d 920 (Fla. App. 1961); Garringv. King Cole Northshore Hotel, Inc., 122 So.2d 207 (Fla. App. 1960).

214. 104 So.2d 3 (Fla. 1958). The case holds that contributory negligence is ajury question when attention is diverted from a known danger by a sufficient cause.

215. 122 So.2d 507 (Fla. App. 1960), 15 U. MIAMI L. REV. 424 (1961).216. Id. at 511.217. Purdon v. Cohen, 126 So.2d 575 (Fla. App. 1961).

1962]


The decision in Biltmore Terrace Associates v. Kegan218 is an importantone as to the duty of care of resorts providing bathing facilities. The courtpointed out that one who stood on a wall at the beach could clearly observethat it was located at the edge of the ocean. To require a warning tobathers under such circumstances would be as ludicrous as requiring a signon the top of an office building reading "don't jump off here. '219

Plaintiffs, husband and wife, left their three-year-old child in the careof the child's grandmother. A contractor had left an unguarded ditch in frontof the plaintiff's home. The child, allowed to play in the vicinity of theditch by the grandmother, fell into the ditch and drowned. A summaryjudgment for the defendant was reversed. 22 0 The court concluded thatsince there was evidence of negligence on the part of the defendant, theplaintiffs would not be barred from recovery unless a jury found: "(a)contributory negligence; (b) attributable to the plaintiffs; and (c) prox-imately contributing to the death of the child." 221

.2. ASSUMPTION OF RISK

An employee's assumption of risk is suspended by the employer'spromise, made in response to the employee's complaint, to repair a defectivepiece of machinery. In addition, an exception to the rule of assumption ofrisk is that an employee does not assume the risk of injury incident to hisemployment if the action causing the injury is done under the command ofthe employer. 222

A stablehand, experienced with horses and aware of the excitable natureof young race horses, was injured when a horse bolted over the rail at atrack. The plaintiff had assumed the risk by taking a position along therail, knowing the danger involved; in addition the court held that theplaintiff was contributorily negligent in turning his back on the race.223

3. IMMUNITY

Florida, in the landmark case of Hargrove v. Town of Cocoa Beach,2 2 4

rejected the rule of municipal immunity from some torts arising out ofgovernmental functions. Further developments in this area will continueas the courts interpret different factual patterns and complaints basedupon them.

218. 130 So.2d 631 (Fla. App. 1961).219. Id. at 634.220. Smith v. City of Daytona Beach, 121 So.2d 440 (Fla. App. 1960).221. Id. at 442.222. Prescott v. Erwin, 133 So.2d 332 (Fla. App. 1961).223. Gulf Stream Park Racing Ass'n v. Miller, 119 So.2d 749 (Fla. App.), cert.

denied, 125 So.2d 872 (Fla. 1960). For another aspect of the case, see the text accom-panying note 176 supra.

224. 96 So.2d 130 (Fla. 1957).

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A city was held not liable for loss by fire based upon claims that it wasnegligent in allowing firemen to improperly use water from fire truck tankfor purposes other than fire fighting, and that the firemen were not properlytrained. 225 In this case the court pointed out that the complaint did notallege the negligence of a municipal employee, but concerned the failureto properly provide a city service.

The Hargrove decision did not have the effect of extending the lia-bility of state agencies beyond that expressly waived by Florida statutes. 226

County boards of public instruction are agencies of the state and as suchare clothed with the same degree of immunity from suit as is the state.227

The only relief that can be given in this area is legislative change in theimmunities now prevailing.

The Hargrove decision does not affect the liability of a municipalityin the exercise of legislative or judicial, or quasi-legislative or quasi-judicialfunctions. 228 In the absence of a contrary governing statute, the right ofrecovery for damages from fire spreading from another's premises is depend-ent upon the existence of negligence in the fire's origin, negligence incontrolling it, or negligence through failure to furnish means forextinguishment.

229

The immunity of a state agency from liability extends to immunityfrom liability for negligence resulting in injury to a charity patient in ahospital operated by a county; a paying patient in a county hospital is entitledto the same redress as a patient in a private hospital.2 0 The court in this casedistinguished a county from a municipality.

Raven v. Coates,231 another attempt to enlarge the Hargrove doctrine,was an action by a motorist against a city for personal injuries sustained inan intersectional collision, allegedly caused by failure of the city to main-tain a stop sign at the intersection. The court had held in Hewitt v.Venable232 that the negligent manual operation of a traffic control signalwas within the scope of Hargrove. In refusing to extend the liability of the

225. Steinhardt v. Town of North Bay Village, 132 So.2d 764 (Fla. App. 1961).226. Moreno v. Aldrich, 113 So.2d 406 (Fla. App. 1959).227. Buck v. McLean, 115 So.2d 764 (Fla. App. 1959).228. Middleton v. City of Fort Walton Beach, 113 So.2d 431 (Fla. App. 1959),

14 U. MIAMI L. REV. 634 (1960).229. Bush v. City of Dania, 121 So.2d 169 (Fla. App. 1960). Damages were alleged

to have been caused from fires started by sparks and embers borne by high winds froma municipal dump fire. The court held that negligence will not be presumed and mustbe proved by the party asserting it.

230. Smith v. Duval County Welfare Bd., 118 So.2d 98 (Fla. App. 1960).231. 125 So.2d 770 (Fla. App.), cert. denied, 138 So.2d 339 (Fla. 1961).232. 109 So.2d 185 (Fla. App. 1959). For other municipal immunity cases see

Calbeck v. Town of South Pasadena, 128 So.2d 138 (Fla. App. 1961); Town of MountDora v. Bryant, 128 So.2d 4 (Fla. App. 1961); City of Coral Gables v. Giblin, 127So.2d 914 (Fla. App. 1961); Tweedale v. City of St. Petersburg, 125 So.2d 920 (Fla.App. 1961).

1962)


city, the court pointed out in Raven that the placing of a policeman or atraffic control device at a particular intersection is a matter of judgment bycity officers. The court added that even if the plaintiff's theory of liabilitywere otherwise sound, the causal relation between the lack of a stop signand the damages was more than doubtful in view of the fact that a personusing a street is required to exercise his faculties to discover and avoidall dangers.

K. Res Ipsa Loquitur

The res ipsa cases were limited to two during the period of the Survey.A plaintiff, injured when playing cards in a card room of a hotel in whichhe was a guest by a portion of the ceiling falling upon him, was entitledto the benefit of the doctrine. 23 3 Another judgment for the plaintiff,injured by a sign which fell from a building under repair by a general con-tractor as he was standing on a sidewalk, was sustained by the same ruleof evidence. 234

L. Damages

Most of the tort actions dealing with the question of damages involvedthe usual questions of excessive and inadequate damages. One plaintiff,winning on the question of liability, but dissatisfied with the damagesawarded, was likened to the "general who won the battle but at such costhe ultimately lost the war." 23 5 Another plaintiff had her damages assessedat "None Dollars. '23 6

In a case apparently of first impression the following charge was upheld:

You are instructed that any award made to Plaintiff as damagesin this case, if any is made, is not subject to federal or state incometaxes, and you should not consider such taxes in fixing the amountof any award made Plaintiff, if any you make.23 7

Wise v. Carter238 illustrates the principle of apportionment of damagesin a situation where the plaintiff had been injured in one accident and

233. Kadushin v. Philmac Realty Corp., 128 So.2d 400 (Fla. App. 1961).234. W. J. Kiely & Co. v. Dickey, 124 So.2d 731 (Fla. App. 1960).235. Heyman v. Fusco, 132 So.2d 216, 217 (Fla. App. 1961).236. Carroll v. Hertz Corp., 132 So.2d 624, 625 (Fla. App.), cert. denied, 138

So.2d 333 (Fla. 1962). See also Clark v. Russo, 133 So.2d 764 (Fla. App. 1961)(excessive damages for whiplash injury); Goldstein v. Walters, 126 So.2d 759 (Fla.App. 1961) (loss of earning capacity of housewife); Thieneman v. Cameron, 126 So.2d170 (Fla. App. 1961) (loss to husband for medical bills); Griffin v. Standley, 123So.2d 55 (Fla. App. 1960) (excessive damages for whiplash injury); Mow v. F. P.Sadowski Corp., 122 So.2d 46 (Fla. App. 1960); Weiss v. Goldman, 120 So.2d 812(Fla. App. 1960) (damages not covering out-of-pocket expenses); Aylesworth v. London,119 So.2d 816 (Fla. App. 1960); Gunn v. Filer, 117 So.2d 247 (Fla. App. 1960);Utley v. Southern Metal Prods. Co., 116 So.2d 28 (Fla. App. 1959).

237. Poirier v. Shireman, 129 So.2d 439, 442 (Fla. App. 1961), 16 U. MIAMIL. REV. 126 (1961).

238. 119 So.2d 40 (Fla. App. 1960).

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subsequently injured by the defendant. The jury should apportion damages,if they can do so, but if there can be no apportionment then the defendantis liable for the entire damages.

A plaintiff seeking to recover damages for pain and suffering beforedeath has the burden of proving the period of time that the decedent wasconscious of pain. 23

9

A nuisance that will be abated by injunction does not provide thebasis for damages for future harm.240 Loss of use of a truck as a businessvehicle does not justify the addition of special damages for loss of usefor pleasure purposes.241

The instruction to his seventeen-year-old sister to run over the plaintiffjustified the award of punitive damages in an action by an ex-wife againsther former husband. 242 A defendant, while driving in the daytime, suf-fered a sudden illness in which he "blacked out." His car went out ofcontrol, leaped the curb and injured the plaintiff who was a pedestrian onthe sidewalk. The withdrawal of punitive damages from the jury's consid-eration was upheld since the defendant's medical history was not such as tonecessarily give him a "premonition or warning of his condition." 243

The "golden rule" argument to the jury by the plaintiff's counsel isimproper and constitutes ground for reversal. 244

Justification for the entry of a remittitur should be ascertainable fromthe record.245 Except in rare and special circumstances, as where an errorin calculation occurs, Florida is without precedent for the proposition thatan additur may be imposed. 24 6

IV. OTHER COMMON LAw TORTS

An unusual number of tort cases, not related to personal injury negli-gence actions, were encountered during a survey of the cases.

Burch v. Strange247 represents a case of first impression in a trespassaction. The court found no cases discussing the liability of a person foracts of trespass committed by an independent contractor and applied thesame general principles as in a negligence action.

239. Morrison v. C. J. Jones Lumber Co., 126 So.2d 895 (Fla. App. 1961).240. A. & P. Food Stores, Inc. v. Kornstein, 121 So.2d 701 (Fla. App. 1960).241. City of Alacbua v. Swilley, 118 So.2d 88 (Fla. App. 1960).242. Sauer v. Sauer, 128 So.2d 761 (Fla. App. 1961).243. Williams v. Frohock, 114 So.2d 221, 223 (Fla. App. 1961).244. Bullock v. Branch, 130 So.2d 74 (Fla. App. 1961), 16 U. MIAMI L. REV.

120 (1961).245. Price v. Jordan, 115 So.2d 444 (Fla. App. 1959).246. Wohlfiel v. Morris, 122 So.2d 235 (Fla. App. 1960); Sarvis v. Folsom, 114

So.2d 490 (Fla. App. 1959).247. 126 So.2d 898 (Fla. App. 1961).

1962]


Where the trespass is done by an independent contractor, theother party is not liable for it when it is not authorized in any wayby the contract unless such other party controls the work or author-izes the specific act.248

A mortgagee has no such title to or possession of the mortgaged premises asto be able to maintain an action for damages arising out of alleged tres-passes.249 Another investment company's agent, the premises having beensold under a contract for deed, went to the plaintiff's house after a defaultin payments, entered it through a window, and took possession of thepremises. The defendant was held liable in trespass.2 0

A corporation doing work for the United States Navy had been paidfor its services; the Navy, through administrative error, paid for the worka second time. The assertion by the defendant of title to the drafts fol-lowing his refusal to return them upon request could amount to conver-sion.251 The operation of a water-ski school can constitute a privatenuisance as to other riparian lake owners. 252 Commercial activities adjacentto homes may also constitute a private nuisance provided owners showpeculiar injury and damage different in kind from that suffered by thecommunity at large. 253 The additional expense to a water company andcity in discharging sewage effluent into a creek rather than into landlockedlakes surrounded by the plaintiff's property was no excuse or justificationfor the discharge into the lakes and constituted a private nuisance andcontinuing trespass. 254

Fraud is a subtle thing requiring full explanation of the facts andcircumstances of the alleged wrong to determine if they collectively consti-tute fraud. Summary judgments and directed verdicts in such cases shouldbe rare. "[T]he law does not define fraud; it needs no definition; it is asold as falsehood and as versable as human ingenuity. . . .Whether fraudhas been committed ordinarily requires the determination of questions of

248. Id. at 900.249. Allstate Fin. Corp. v. Zimmerman, 272 F.2d 323 (5th Cir. 1959); connected

case, 296 F.2d 797 (5th Cir. 1959).250. Mid-State Inv. Corp. v. O'Steen, 133 So.2d 455 (Fla. App.), cert. denied,

136 So.2d 349 (Fla. 1961); see 16 U. MIAMI L. REV. 493 (1962) for discussion of thecase on other points of law. For other trespass cases see Hattaway v. Florida Power &Light Co., 133 So.2d 101(Fla. App. 1961); Overstreet v. Lamb, 128 So.2d 897 (Fla.App. 1961); Leonard v. Nat Harrison Associates, 122 So.2d 432 (Fla. App. 1960).The Leonard opinion contains a classical discussion of the distinction between trespassand trcspass on the case by Chief Judge Allen. For subsequent history of the Leonardcase see 126 So.2d 615 (Fla. App. 1961) and 137 So.2d 18 (Fla. App. 1961).

251. United States v. Goodman, 287 F.2d 871 (5th Cir. 1961).252. Florio v. State, 119 So.2d 305 (Fla. App. 1960). The action by riparian

lake owners was brought under FLA. STAT. §§ 64.11, 823.01, .05 (1961).253. A. & P. Food Stores, Inc. v. Kornstein, 121 So.2d 701 (Fla. App. 1960)

(supermarket operations involving noise from air conditioning units, delivery trucks inearly morning hours and odor from decayed vegetables); Hale v. Monroe Zeder, Inc.,117 So.2d 426 (Fla. App. 1960) (floodlights, noise from loudspeakers, and noise fromunloading early in morning).

254. North Dade Water Co. v. Adken Land Co., 130 So.2d 895 (Fla. App. 1961).

[VOL. XVI

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fact by the jury, if the case is one tried by jury, or by the court if the case

is tried without a jury."255

Illustrations of the diversity of tort actions are numerous. Several

actions were brought on the theory of unfair competition and the use of

trademarks, 25 6 and one case involved an injunction against the disclosure

of trade secrets by a former employee.257 Two cases involved the interference

with contract rights. 258 Another complaint alleged the violation of plain-

tiff's civil rights. 25 9 Negligent delay in issuing insurance 20 0 and negligent

loss of an employer's money were also the foundations for tort actions.26 1 The

shooting of a prowling college student resulted in an action for wrongfuldeath .

262

Florida is one of the few states recognizing the'right of privacy, although

with limitations. A newspaper published the following statement: "Wannahear a sexy telephone voice? Call ...and ask for Louise.1 263 Apparently

Louise was called, for she brought an action against the newspaper. Thecourt concluded that employment in a business office was insufficient torender plaintiff a public personage and discussed the standards to be applied

in determining the right to privacy. 264 The invasion of the right to privacy

may entitle one to compensatory damages and not punitive damages. 2 5

A widow brought an action against a funeral home for mental pain andanguish allegedly caused by the funeral home's action in embalming the

body of a widow's husband without her permission. In upholding a sum-mary judgment for the defendant the court noted that the facts in the casedid not meet the test of malice essential and that

in an action founded purely in tort in order for recovery to be

255. Massey-Ferguson, Inc. v. Bent Equip. Co., 283 F.2d 12, 15 (5th Cir. 1960);accord, Alepgo Corp. v. Pozin, 114 So.2d 645 (Fla. App. 1959), cert. denied, 117So.2d 842 (Fla. 1960). For other fraud cases see Kaminsky v. Wye, 132 So.2d 44(Fla. App. 1961); Rogers v. Riddle, 128 So.2d 409 (Fla. App. 1961); Prescott v. Kreher,123 So.2d 721 (Fla. App. 1960); Popper v. Havana Publications, Inc., 122 So.2d 247(Fla. App. 1960), 15 U. MIAMI L. REV. 330 (1961); Nelson v. Cravero Constructors,Inc., 117 So.2d 764 (Fla. App. 1960); Beck v. Barnett Nat'l Bank, 117 So.2d 45 (Fla.App. 1960).

256. Miami Credit Bureau, Inc. v. Credit Bureau, Inc., 276 F.2d 565 (5th Cir.1960); Cameron v. Miami Ventilated Awning Mfg. Co., 122 So.2d 582 (Fla. App. 1960);Stagg Shop of Miami, Inc. v. Moss, 120 So.2d 39 (Fla. App. 1960).

257. Fountain v. Hudson Cush-N-Foam Corp., 122 So.2d 232 (Fla. App. 1960).258. Miami Laundry Co. v. Sanitary Linen Serv. Co., 131 So.2d 519 (Fla. App.),

cert. denied, 133 So.2d 325 (Fla. 1961); Steffan v. Zernes, 124 So.2d 495 (Fla. App.1960).

259. Ball v. Yarborough, 281 F.2d 789 (5th Cir. 1960).260. Rosin v. Peninsular Life Ins. Co., 116 So.2d 798 (Fla. App. 1960).261. Meyer v. L. P. Evans Motors, Inc., 132 So.2d 19 (Fla. App. 1961); for previous

history see 119 So.2d 301 (Fla. App. 1960).262. Carbone v. Coblentz, 132 So.2d 629 (Fla. App. 1961).263. Harms v. Miami Daily News, Inc., 127 So.2d 715, 716 (Fla. App. 1961).264. Id. at 718.265. Thompson v. City of Jacksonville, 130 So.2d 105 (Fla. App. 1961). The

case contains an important discussion of the liability of municipal corporations.

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effected for damages resulting from mental pain and anguish uncon-nected with physical injury, the wrongful act must be such as toreasonably imply malice or such that, from the entire want of careor attention to duty or great indifference to the person, property,or rights of others, such malice would be imputed as would justifyassessment of exemplary or punitive damages.2

1

A. Libel and Slander

Miami Herald Publishing Co. v. Brautigam26 involved a libel actionagainst a newspaper publisher by a state's attorney. The initial appeal wastransferred by the district court to the supreme court on the ground that"inherent in the judgment appealed from there was the construction ofcontrolling provisions of the Florida and Federal Constitutions guaranteeingfreedom of the press." 2 8 The supreme court remanded the case to thedistrict court after concluding that it lacked jurisdiction, and the unauthor-ized exercise of jurisdiction would set a precedent requiring the court toaccept appeals as a matter of right in all libel trials.2 9 On remand thedistrict court affirmed the action of the trial court, which had rendereda judgment for the plaintiff for 25,000 dollars compensatory damages and75,000 dollars punitive damages. The court, in an able discussion of thelaw, concluded that the press, while guaranteed the right to publish thetruth supported by good motives, has no right to publish falsehoods to theinjury of others.

The great majority of American courts hold that no comment canbe fair if it is based on misstatements of fact.... We concur in thisview and align ourselves with the majority. The appellant urgesthat we reverse the trial court and adopt a rule by which corruptor dishonorable motives may be imputed to others where such im-putations are warranted by the facts. Such a construction of thedefense of fair comment has been accepted in England and a minor-ity of American courts. . . .It is our opinion that the better viewsupports the holding that the defense does not embrace the rightto falsely impute one's motives, want of loyalty or misconduct inoffice.

27 0

A court will take judicial notice of the fact that headlines appearingin the newspapers are written by a member of the staff of the newspaperand they are generally not a part of the dispatches from the recognized newsagencies.27 ' Vhen the headline, written by a newspaper editor for a news

266. Kimple v. Riedel, 133 So.2d 437, 439 (Fla. App. 1961).267. 127 So.2d 718 (Fla. App. 1961), cert. denied, 135 So.2d 718 (Fla.), cert.

denied, 369 U.S. 821 (1962).268. 121 So.2d 431 (Fla. 1960).269. Id. at 432.270. 127 So.2d at 723. Carroll, J., dissented in a well reasoned opinion on the

admission of evidence and the giving of a charge concerning fair comment.271. MacGregor v. Miami Herald Publishing Co., 119 So.2d 85 (Fla. App. 1960).

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item which had been released by a news agency, extends beyond the contextof the article reproduced from the news gathering agency, adding to orsubtracting from the article so that the headline in itself could becomelibelous, then the newspaper would not be protected. 272 The court concludedthat the headline in question followed the news item and that the case wasnot affected by sections 770.01 and 770.02 of the Florida Statutes. 273

The oral statement that the plaintiff was a"deadbeat and not an honestperson" was held to be slanderous per se.274 A complaint setting out suchstatements was sufficient to state a cause of action even without an allega-tion as to the plaintiff's trade or business when the complaint alleged thatthe plaintiff had been damaged in her personal, social, official and businessrelations.271

B. Malicious Prosecution and False Arrest

The public policy aspects involved in actions for malicious prosecutionand false arrest are obvious, particularly when law enforcement officers areinvolved. Citizens must be given some protection against the irresponsibleinstitution against them of criminal proceedings by other persons, evenlaw enforcement officers. On the other hand, law enforcement and theprotection of society from crime would likely be adversely affected if lawenforcement agents were subject to liability in damages for simple negli-gence in the performance of their duties if the citizens they charge withcrime should not be convicted.

Malicious prosecution and false arrest are often involved in the samecase; during the period of the Survey eleven actions arose involving oneor both categories.

Wilson v. O'Neal276 is a case of first impression in this country. Theplaintiff brought a negligence action and sought to recover damages froma State Beverage Department employee for careless performance of duty andfailure to make due inquiry before charging the plaintiff with a crime bycausing the issuance of an arrest warrant. The court held that there is nolegally recognized cause of action in negligence for improperly causing theissuance of an arrest warrant. The action of malicious prosecution is theremedy available to protect persons from unjustifiable litigation. The gistof the action is the concurrence of

(1)' The commencement or continuance of an original civil or

272. Id. at 88.273. FLA. STAT. §§ 770.01, .02 (1961).274. Carter v. Sterling Fin. Co., 132 So.2d 430 (Fla. App. 1961).275. Id. at 432.276. 118 So.2d 101 (Fla. App.), cert. dismissed, 122 So.2d 403 (Fla.), appeal

dismissed, 123 So.2d 677 (Fla. 1960), cert. denied, 365 U.S. 850 (1961), 15 U. MIAMIL. REv. 101 (1960).

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criminal judicial proceeding; (2) Its legal causation by the presentdefendant against plaintiff who was defendant in the originalproceeding; (3) Its bona fide termination in favor of the presentplaintiff; (4) The absence of probable cause for such proceedings;(5) The presence of malice therein; (6) Damage conforming tolegal standards resulting to plaintiff. If any one of these elementsis lacking, the result is fatal to the action.*77

Actions may arise against municipalities 278 or against corporations andprivate citizens. 27 9 A conviction in a lower court, even though reversedin a higher court, unless the conviction was obtained by fraud, perjury, orother corrupt means, is a good defense to the action. 28° Florida Statutesection 811.022281 provides exemptions from false arrest in shopliftingcases.

2 8 2

V. LEGISLATION

Only minor action of interest to the field of tort was taken by thelegislature at the last session. Perhaps the most important measure wasthe provision 283 requiring that every automobile liability policy delivered orissued for delivery in the state with respect to vehicles registered in thestate shall contain an uninsured motorist endorsement covering bodily lia-bility within the minimum limits prescribed by the financial responsi-bility law. 2 4 The statute provides that any insured named in the policymay reject the coverage.285

Natural guardians' authority to settle or compromise tort claims ofminor children was increased from one hundred dollars to five hundreddollars. 280 Notice provisions affecting tort actions against municipal corpo-rations are provided in another amendment. 28 7

277. Id. at 104.278. Gordon v. City of Belle Glade, 132 So.2d 449 (Fla. App. 1961); Calbeck

v. Town of South Pasadena, 128 So.2d 138 (Fla. App. 1961); City of Coral Gables v.Giblin, 127 So.2d 914 (Fla. App. 1961) (liability of city for arrest outside of city bypolice officers): City of Miami v. Albro, 120 So.2d 23 (Fla. App. 1960); Middleton v.City of Fort Walton Beach, 113 So.2d 431 (Fla. App. 1959), 14 U. MIAMI L. REV.634 (1960).

279. Dickey v. Kaiser Aluminum & Chem. Sales, Inc., 286 F.2d 137 (5th Cir. 1960);Rothstein v. Jackson's of Coral Gables, Inc., 133 So.2d 331 (Fla. App. 1961); Kern v.Modernage Furniture Corp., 125 So.2d 893 (Fla. App.), writ discharged, 135 So.2d715 (Fla. 1961); Tieder v. Wood, 122 So.2d 490 (Fla. App. 1960); Williams v.Confidential Credit Corp., 114 So.2d 718 (Fla. App. 1959).

280. Gordon v. City of Belle Glade, 132 So.2d 449 (Fla. App. 1961).281. FLA. STAT. § 811.022 (1961).282. Rothstein v. Jackson's of Coral Gables, Inc., 133 So.2d 331 (Fla. App. 1961)

(the detention must be in a reasonable manner and for a reasonable length of time).283. FLA. STAT. § 627.0851(1) (1961).284. FLA. STAT. ch. 324 (1961).285. For an excellent discussion of the uninsured motorist coverage provisions see

14 U. FLA. L. REV. 455 (1962).286. FLA. STAT. § 744.13(2) (1961).287. FLA. STAT. § 95.241 (1961).

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